28th murderer executed in U.S. in 2013
1348th murderer executed in U.S. since 1976
5th murderer executed in Florida in 2013
79th murderer executed in Florida since 1976

Since 1976

Date of Execution

State

Method

Murderer(Race/Sex/Age at Murder-Execution)

Date ofBirth

Victim(s)(Race/Sex/Age at Murder)

Date ofMurder

Method ofMurder

Relationshipto Murderer

Date ofSentence

1348

(28)

10-01-13

FL

Lethal Injection

Marshall Lee Gore

W / M / 24 - 50

08-17-63

Robyn Gayle NovickW / F / 30Susan Marie RoarkW / F / 19

03-10-88

01-31-88

Handgun

None

06-30-9504-19-99

04-03-90

Summary:
Susan Roark was last seen alive on January 30, 1988, in Cleveland, Tennessee, in the company of Marshall Lee Gore. Gore had entered Roark's black Mustang automobile at a convenience store. When she did not return home that night she was reported missing by her family. Gore arrived in Tampa, Florida the next day driving a black Mustang. He convinced a friend to help him pawn several items of jewelry later identified as belonging to Roark. Gore then proceeded to Miami, where police subsequently recovered Roark's Mustang after it was abandoned. Gore's fingerprint was found in the car, as well as a traffic ticket which had been issued to him while he was in Miami. On April 2, 1988, the skeletonized remains of Roark's body were discovered in Columbia County, Florida, in a wooded area which had been used as an unauthorized dumping ground. Expert testimony established that the body was placed in its location within two hours of death. Lisa Ingram also testified that she "was riding in a car with Gore on February 19 when she saw a woman's purse in the back seat. She testified that Gore told her the purse belonged to a girl "that he had killed last night."

In the early hours of March 12, 1988, Coral Gables police recovered a wrecked yellow Corvette with license tags reading “Robyn.” Found inside were personal items of Robyn Novick, and legal papers executed by Gore. Four days later, officers found the nude body of Robyn Novick beside the road in rural Dade County. A belt was wrapped around her neck with two stab wounds to the chest. Novick met Gore during a brief stint moonlighting as a dancer at a club in North Miami-Dade. Linda Williams testified that she saw Robyn Novick at a tavern about 9:00 p.m. on March 11, getting into her car with a man resembling Gore. A friend of Gore testified that Gore awakened him in the early hours of March 12, 1988; that Gore was driving a yellow Corvette with “Robyn” on the tag; that they drove to a strip club where he waited in the car while Gore went into the club; that Gore told him he wanted to be called “Robyn” from then on and that he had borrowed the car from a girlfriend; that Gore wrecked the Corvette; and that, while they were running away from the wrecked car, Gore told him that it was stolen.

Jessie Casanova testified that Gore moved into her home in February 1988; that he drove a black Mustang at that time, but wrecked it in February; that her mother asked Gore to leave in March 1988; that, when Gore left in a taxicab on March 11, 1988, she lent him $100; that Gore came back about 2:00 a.m. on March 12, 1988, driving a light-colored Corvette; that Gore returned the following afternoon by taxicab and said the Corvette belonged to a friend; and that Gore gave her keys to a Corvette. Gore initially denied knowing the women, but later testified that all worked for him at an escort service.

Gore also received five life sentences and three 30-year terms for a string of felonies including the beating, raping and stabbing another woman just three days after the Novick murder. The victim, Tina Corolis, survived the attack and she was found near the same trash heap where Novick's body had been dumped. In all, Gore was suspected in 15 sexual assaults and one other attempted murder. He had also served time in a federal prison on a firearms conviction.

(Reuters) - A man whose execution was delayed for a political fundraiser was put to death by lethal injection on Tuesday for the murders of two women over a six-week span 25 years ago.
Marshall Lee Gore was the third death row inmate executed in Florida since late May. His execution was rescheduled three times, twice when courts halted the proceeding as his lawyers argued he was mentally incompetent for execution.
A third postponement occurred in September when Florida's Attorney General Pam Bondi asked Gov. Rick Scott to delay Gore's execution to allow her to attend a political fundraiser. Bondi later apologized.

Gore, 49, was pronounced dead at 6:12 p.m. EDT (1812 GMT) from a lethal injection at the Florida State Prison near Starke, said Misty Cash, a spokeswoman for the Florida Department of Corrections. He died without making a final statement.

Gore fought for more than half his life against a string of convictions for violent crimes against women. His attorneys claimed that Gore - who laughed and cursed during one trial and made up bizarre claims that he was on death row because powerful state leaders wanted to harvest his organs - was mentally ill.
Prosecutors, however, described Gore as ruthless and claimed he attempted to dupe a psychiatric panel that once examined him.

Gore was sentenced to die for the 1988 killing of Robyn Novick, a 30-year-old exotic dancer whose nude body was found at a rural trash dump in Miami-Dade County.
Gore was seen driving Novick's yellow Corvette a day after she disappeared. Gore said he had borrowed the car and abandoned it, but denied the killing.

He was also convicted in the slaying of Susan Roark, whose body was found in northern Florida months after she vanished.
Gore also received five life sentences and three 30-year terms for a string of felonies including the beating, raping and stabbing another woman just three days after the Novick murder.
The victim, Tina Corolis, survived the attack and she was found near the same trash heap where Novick's body had been dumped.
In all, Gore was suspected in 15 sexual assaults and one other attempted murder. He had also served time in a federal prison on a firearms conviction.

"Miami killer Marshall Lee Gore is executed at the Florida State Prison," by David Ovalle. (10/01/2013)

STARKE -- Marshall Lee Gore, the notorious Miami rapist and murderer, was known for his outrageous courtroom antics: insulting lawyers, storming off the witness stand and howling at a guilty verdict.
But after more than two decades on Florida’s Death Row, Gore displayed no insolence in his final moments.
Instead, on Tuesday night, as he lay strapped in a gurney awaiting death by lethal injection at Florida State Prison, he refused to open his eyes.
“Inmate Gore, do you have a last statement you’d like to make,” a prison official asked just past 6 p.m.
Gore, 50, his jowls quivering side-to-side slightly, said not a word.

A lethal cocktail of drugs began coursing into his veins through tubes hooked into both arms. Moments later, his mouth opened in a deep labored breath, then stayed agape as color drained from his ruddy face.
From behind a thick pane of glass, four rows of observers, including relatives of victims Robyn Novick and Susan Marie Roark, leaned forward in their chairs as minutes ticked away. A white-smocked doctor walked in. He pried Gore’s eye lids open, shining a light in. No response. At 6:12 p.m., the prison official pronounced Gore dead.

“I thought that was quite ironic, that he had nothing to say at the end,” said retired Miami-Dade Detective Dave Simmons, who investigated Gore’s slew of rapes. “He played the system for years faking insanity, saying outlandish things to judges and witnesses, and in his moment of truth, he had nothing to say for himself. He was the ultimate coward in the end.”
As the relatives filed out of the gallery, Novick’s sister, Pamela Novick, winked at journalists. Gore stabbed and beat Robyn Novick to death in March 1988, leaving her discarded corpse in a trash heap near Homestead.

Pamela Novick recalled her 30-year-old sister’s “heart of gold” and “zest for life” and the horror of her body dumped “as if one was throwing out garbage.”
Novick read a statement after the execution lamenting that Gore had lived for so long after her sister’s death.
“My sister Robyn wasn’t given a choice of how or when she wanted to die,’’ she said. “She was violently murdered by a serial killer with no mercy and no appeals.’’
Novick’s elderly mother, Phyllis Novick, who lives in Ohio, did not attend Tuesday’s execution. Neither did her father.
“Our dearest father, Alvin, had hoped to see this day. Unfortunately, he passed away too soon,” Pamela Novick said.

Gore’s execution was ultimately quick and drama-free, unlike the 25 years of legal wrangling since he murdered the two women and nearly killed another. It had been Gore’s fourth scheduled execution in recent months. Twice before, courts halted executions as Gore’s lawyers sought to stave off his death because of questions about his sanity.
Then, in a move roundly criticized, Florida Attorney General Pam Bondi rescheduled a September execution date so she could attend a political fundraiser; she later apologized. Bondi’s decision still riled many involved in the case.
“It was a slap in the face, not only for the law enforcement officers involved but for the families who have waited 25 long years,” said retired Columbia County Sheriff’s Lt. Neal Nydam, who investigated the Roark murder and attended Tuesday’s execution. Nydam said afterward: “It’s been a roller coaster. But finally, it’s over.”

Nydam attended the execution with former Columbia prosecutor Bob Dekle, who also put away serial killer Ted Bundy. Former Miami-Dade prosecutor Flora Seff also witnessed the execution.
Authorities arrested Gore in 1988 after he kidnapped a stripper Tootsie’s Cabaret in North Miami-Dade. After raping the woman, he slit her throat, bashed her head in with a rock and left her to die in an isolated stretch near Homestead. The woman lived, alerting police officers that Gore had made off with her car, with her 2-year-old son in the back seat. The child was later found alive.
Officers looking for the boy stumbled across Novick’s remains. She was last seen with Gore leaving a tavern.
Novick, originally from Cincinnati, was a General Motors credit services representative who met Gore during a brief stint moonlighting as a dancer at Solid Gold in North Miami-Dade.
Suspicion soon fell on Gore for the disappearance of Tennessee college student Susan Marie Roark, who had disappeared two months earlier. She was last seen in his company. In April 1988, Columbia County deputies found Roark’s body, reduced to almost a skeleton, off a forest road.

In all, Gore was suspected of at least 15 sexual assaults, the attempted murder of a girl in Broward and the two murders.
After he was convicted in a slew of trials, Gore’s lawyers claimed the convicted killer was mentally ill. His execution, they said, would violate a constitutional ban on cruel and unusual punishment. In documents penned himself, Gore tried to prove his insanity by claiming he was being executed as a “human sacrifice” and for “organ harvesting.”
Ultimately, court after court rejected Gore’s claims. Late Tuesday, the U.S. Supreme Court refused to give Gore a final stay.
“I think the system is set up in a way that makes it very difficult for everybody involved, especially the victim’s families,” former prosecutor Seff said. “Despite that fact so much time has passed, the execution brought some peace to these people.”

Florida's attorney general has apologized for prompting a delay in an execution originally scheduled for Tuesday because the date conflicted with one of her political fundraisers.
State attorneys general typically march to electoral victory by preaching how tough they are on crime. Enter Florida Atty. Gen. Pam Bondi, who is seeking reelection as convicted murderer Marshall Lee Gore is facing the death penalty.
Gore was set to be executed Tuesday for killing 30-year-old Robyn Novick and 19-year-old Susan Roark in 1988.

It took 25 years for the case to reach this point, not unusual for capital punishment cases, which often get bogged down in appeals.
But what's unusual in this case is that Bondi asked Gov. Rick Scott, a fellow Republican, to delay Gore's execution instead of rescheduling a campaign event she'd planned at her South Tampa home, according to the Tampa Bay Times.
The governor said he didn't know why Bondi had asked to reschedule.

"What's going on down there? It's ridiculous," Phyllis Novick, one of the victim's mothers, told the newspaper when it broke the story.
When a reporter asked Bondi about the shift, she apologized.
"The planned execution of Marshall Lee Gore had already been stayed twice by the courts, and we absolutely should not have requested that the date of the execution be moved," Bondi told the Tampa Bay Times.
Barring any changes, Gore's execution is scheduled for Oct. 1.

Gore executed for murder of two Florida women," by Jeff Schweers. (Tuesday, October 1, 2013 at 4:53 p.m.)

RAIFORD — After 23 years on Death Row, filing appeal after appeal that he was mentally ill and unfit to be put to death, Marshall Lee Gore was executed Tuesday evening as the families of two of his victims watched in silence through a glass window. Gore, 49, made no last statement and took no sedative before he was killed by lethal injection. The last meal he ordered — a pepperoni and sausage pizza — went uneaten, prison officials said. The state pronounced him dead at 6:12 p.m.

In 1988, Gore was convicted for the brutal slayings of Robyn Gale Novick and Susan Roark. He was also convicted of attempting to murder Tina Coralis and kidnapping Coralis' 2-year-old son. The death warrant was for Novick's murder.
“Robyn Gale Novick was only 30 when Marshall Lee Gore savagely beat, raped, stabbed her in the heart and strangled her to death with her own belt,” Pamela Novick, her sister, said after witnessing Gore's execution.
She choked up and had to start over before continuing the 2½-page handwritten statement.
“He continued to squeeze the life out of her until she took her very last breath,” Novick said, surrounded by other family members. “He then dumped her beautiful body as if one was throwing out garbage.”

Robyn Novick lived in Fort Lauderdale and had been working as an exotic dancer when she met Gore, who killed her and dumped her body in rural Miami-Dade County.
Months earlier, Gore had kidnapped a 19-year-old Roark from Tennessee, using her car, and then killing her and dumping her body in Columbia County.
Members of Roark's family declined to comment, prison officials said.
Pamela Novick said her sister had been a petite, beautiful free spirit who thought people were basically good. “As a free spirit, she enjoyed meeting all types of people,” Pamela Novick said. “Her trusting personality ultimately led to her untimely death.”
Novick also criticized people who empathized with Gore, who got to live for more than two decades, exercising, watching television, breathing and eating, she said. “My sister Robyn wasn't given a choice of how or when she wanted to die.”

Gore was originally scheduled to die on June 24, but an hour before the set time, the federal 11th Circuit Court of Appeals in Atlanta ordered a stay based on a claim by Gore's attorney that Gore was ineligible for execution because he was insane.
A federal appeals court lifted the stay on June 28. Gov. Rick Scott rescheduled the execution for July 10, but Circuit Judge Ysleta McDonald in Bradford County found reasonable grounds that Gore was too insane to be executed following an emergency appeal filed by Gore's attorney.
The Eighth Amendment to the U.S. Constitution prohibits execution of insane inmates. McDonald also ordered more hearings on Gore.
The execution was rescheduled for Sept. 10, but postponed a third time by Gov. Rick Scott at the request of Attorney General Pam Bondi. Bondi had a campaign fundraiser in Tampa on Sept. 10.

The last inmate executed prior to Gore was John E. Ferguson on Aug. 5. He was convicted and sentenced to death for eight counts of first degree murder in 1978. Ferguson's lawyers had made the same argument that he was insane and that executing him would be illegal.
Ferguson understood that he was going to be executed, but he thought he was being targeted in a communist conspiracy, his lawyer said. Ferguson's final statement that he was the prince of God and would rise again also pointed to a lack of understanding about his execution, his lawyers said.
Gore's mental status has long been the subject of numerous motions and appeals by his attorneys, but several judges struck down those claims over the years. His lawyers claimed he was delusional, that his execution was part of a conspiracy among the elite to harvest his organs after he was dead.

Mark Elliott, of Floridians for an Alternative to the Death Penalty, said the state “unnecessarily killed an obviously mentally ill prisoner,” and said the governor should devote more money to solving the thousands of unsolved murders in the state.
Bob Dekle, one of the prosecutors in the case, said he felt empty after watching Gore be put to death. “He did some horrible things to a vast number of undeserving people, and he got what he deserved.” Dekle said. “It took too long.”

On June 14, Scott signed the Timely Justice Act, which requires the governor to sign a death warrant within 30 days of review by the Florida Supreme Court; and it requires the state to execute the defendant within 180 days of the warrant.
The next execution is scheduled for Oct. 15. William Frederick Happ was convicted and sentenced to death in 1989 for the murder of Fort Lauderdale resident Angela Crowley, whose body was found in the Cross-Florida Barge Canal near Crystal River.

A convicted killer who had been on death row for 23 years was executed by lethal injection at Florida State Prison on Tuesday.
Marshall Lee Gore, 49, was pronounced dead at 6:12 p.m., authorities said.
Gore, a former Miami-Dade escort service owner, was convicted of killing two women in the 1980s and executed for the March 1988 murder of of one of those women, exotic dancer Robyn Novick. The 30-year-old nude body was found dumped in rural Miami-Dade County.
Gore was also convicted of killing another woman, Susan Roark, and the attempted murder of another woman.

•Stay of Execution Lifted for Gore

In addition to the two death sentences, Gore was given seven life sentences plus another 110 years in a case involving the attempted murder.
Tuesday was the fourth time Gore's execution has been scheduled this year. Twice, courts put the execution on hold due to insanity claims. Attorney General Pam Bondi's staff also once asked that it be postponed because it conflicted with her political fundraiser.

•AG Bondi Apologizes for Execution Delay

On Monday, Gore's attorneys asked for a stay from the U.S. Supreme Court.
Gore said he suffered from delusions related to a conspiracy theory in which the purpose of his execution is so that the elite and wealthy people can harvest his organs. Gore has also said he was being targeted by satanic worshippers for human sacrifice, that he hears voices telling him to hang himself and that he was somehow injected with the virus that causes tuberculosis.
The appeals judges sided with a panel of state-appointed mental health experts who concluded Gore's "insanity" was all an act "designed to mislead the panel and avoid responsibility for his past actions."
Gore was arrested after attacking a third woman, who survived, and later testified at his trial in connection with Novick's death. The survivor said Gore beat her with a rock, choked, raped and stabbed her, leaving her near where Novick's body was found.
The FBI tracked the woman's stolen car to Paducah, Ky., and arrested Gore. When he was found, he had the woman's bank and credit cards in his jacket pocket, according to court documents.

Upon questioning about all three crimes and shown pictures of Novick's body, police said his eyes filled with tears and he said, "If I did this, I deserve the death penalty."
Gore initially denied knowing any of the women, according to police. But he later testified that all three women worked for him at an escort service.

7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.

10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.

12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.

13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.

14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.

15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.

16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.

17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.

18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.

20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.

22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.

23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.

24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.

30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.

31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.

32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.

37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.

39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.

42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.

43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.

44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.

45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.

46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.

47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.

48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.

49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.

50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.

51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.

52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.

53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.

54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.

55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.

56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.

57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.

58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.

59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.

60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.

Susan Roark was last seen alive on January 30, 1988, in Cleveland, Tennessee, in the company of Marshall Lee Gore. Gore had planned to travel to Florida with a friend from Cleveland. While waiting for his friend at a convenience store, Gore struck up a conversation with Susan Roark. Gore then entered Roark's car, a black Mustang, and they drove away. Gore accompanied Roark to a party at the home of a friend of hers. Roark had planned to spend the night at her friend's home. Sometime between 11:30 and 12:00, Roark left to drive Gore home. She never returned. The following day Roark's grandmother reported her missing. She had been expected home by 7 a.m. that morning.

Gore arrived in Tampa on January 31, driving a black Mustang. He convinced a friend to help him pawn several items of jewelry later identified as belonging to Roark. Gore then proceeded to Miami, where police subsequently recovered Roark's Mustang after it was abandoned in a two-car accident. Gore's fingerprint was found in the car, as well as a traffic ticket which had been issued to him while he was in Miami. On April 2, 1988, the skeletonized remains of Roark's body were discovered in Columbia County, Florida. The naked body was found in a wooded area which had been used as an unauthorized dumping ground for household garbage and refuse. Expert testimony established that the body was placed in its location either at the time of death or within two hours of death.

In addition to this evidence, the State introduced the testimony of two other witnesses. Specifically, Lisa Ingram testified that she "was riding in a car with Gore on February 19 when she saw a woman's purse in the back seat. She testified that Gore stated that the purse belonged to 'a girl that he had killed last night.'"

In the early hours of March 12, 1988, Coral Gables Patrolman James Avery had heard the sounds of a car wreck. He followed gouge marks and leaked fluid on the road and found a wrecked yellow Corvette with license tags reading “Robyn.” Inside the car Avery found a gold cigarette case with the victim’s initials along with her driver’s license and several credit cards. Another officer also searched the car and found a power of attorney executed by Marshall Gore. On March 16, 1988, Officer Norman Shipes found a woman’s body beside the road while on patrol in rural Dade County. The medical examiner found a belt wrapped around the body’s neck and a white cloth around the left ankle. The body was nude. There were two stab wounds to the chest and abrasions on the neck under the belt. The victim was alive when strangled, and the cause of death was stab wounds associated with mechanical strangulation. The victim was identified as Robyn Novick. Novick, originally from Cincinnati, was a General Motors credit services representative who met Gore during a brief stint moonlighting as a dancer at a club in North Miami-Dade.

Linda Williams testified that she saw Robyn Novick at a tavern about 9:00 p.m. on March 11, 1988; that, when Robyn left, she got into the driver’s side of a yellow Corvette with “Robyn” on the tag; and that a white male resembling Marshall Gore was in the passenger’s seat. David Restrepo testified that Gore awakened him in the early hours of March 12, 1988; that Gore was driving a yellow Corvette with “Robyn” on the tag; that they drove to a strip club where he waited in the car while Gore went into the club; that Gore told him he wanted to be called “Robyn” from then on and that he had borrowed the car from a girlfriend; that Gore wrecked the Corvette; and that, while they were running away from the wrecked car, Gore told him that it was stolen.

Jessie Casanova testified that Gore moved into her home in February 1988; that he drove a black Mustang at that time, but wrecked it in February; that her mother asked Gore to leave in March 1988; that, when Gore left in a taxicab on March 11, 1988, she lent him $100; that Gore came back about 2:00 a.m. on March 12, 1988, driving a light-colored Corvette; that Gore returned the following afternoon by taxicab and said the Corvette belonged to a friend; and that Gore gave her keys to a Corvette.

Mark Joy testified that he worked at a strip club called the Organ Grinder and that Gore showed up at the club early on March 12, 1988, driving a yellow car with “Robyn” on the tag. Frank McKee testified that Gore came to his home between 11:00 p.m. and midnight on March 13, 1988; that Gore told him that the police were looking for him; that he had been driving a Corvette and wrecked it; and that Restrepo had been with him in that car. Among other things Mike Decora of the Metro-Dade Police Department testified that Jessie Casanova gave him a key that fit the victim’s Corvette and that, when he showed Linda Williams a photographic lineup, she said that Gore’s photograph showed the same features as the man she saw with the victim on March 11, but that she could not be positive because the hair and mustache were different.

David Simmons of the Metro-Dade Police Department testified that he and Officer Parr interviewed Gore on March 24, 1988 and that Gore denied ever driving a yellow Corvette or knowing the victim. Gore asked to see a photograph of the victim, but said: “Just make sure it’s not a gory one, my stomach can’t take it.” To that point, no one had said that the victim was dead. When given the photograph, Gore covered his eyes with his hand and turned away, and then said he did not recognize the victim. The officers then told Gore he was a suspect in the victim’s murder and that a paper with his name on it had been found in her car. Gore then stated: “If I did this, I deserve the death penalty.”

After a pretrial hearing the court ruled that the state could introduce evidence of similar crimes committed by Gore. The state introduced evidence of the January 1988 murder of Susan Roark. The state also introduced evidence that, on March 14, 1988, Gore raped, beat, choked, and stabbed a young woman, after which he stole her car and personal property. The second victim survived and testified against Gore in this trial. She testified that Gore called her for a ride the evening of March 14, 1988 and told her that his Corvette had broken down. She took her two-year-old son and picked Gore up in Ft. Lauderdale. After driving around looking for Gore’s friend’s house, Gore pulled a knife on her and drove off with the woman unable to see where they were going. When he stopped the car, Gore raped her at knife point, then pulled her out of the car, hit her in the face with a rock, and choked her. When she regained consciousness, she was naked, and Gore her car, and her son were gone. Her jewelry was also missing, and, when she awoke again in a hospital, she discovered she had been stabbed. The child was later found alive. It was while police officers were looking for the boy that they stumbled across Robyn Novick's remains. Suspicion soon fell on Gore for the disappearance of Tennessee college student Susan Marie Roark, who had disappeared two months earlier. She was last seen in his company. In April 1988, Columbia County deputies found Roark’s body, reduced to almost a skeleton, off a forest road.

UPDATE: Marshall Lee Gore refused an opportunity to make a final statement prior to his execution. Relatives of victims Robyn Gayle Novick and Susan Marie Roark were present to witness the execution. “I thought that was quite ironic, that he had nothing to say at the end,” said retired Miami-Dade Detective Dave Simmons, who investigated Gore’s slew of rapes. “He played the system for years faking insanity, saying outlandish things to judges and witnesses, and in his moment of truth, he had nothing to say for himself. He was the ultimate coward in the end.” As the relatives filed out of the gallery, Novick’s sister, Pamela Novick, winked at journalists.

Pamela Novick recalled her 30-year-old sister’s “heart of gold” and “zest for life” and the horror of her body dumped “as if one was throwing out garbage.” Novick read a statement after the execution lamenting that Gore had lived for so long after her sister’s death. Pamela Novick said her sister had been a petite, beautiful free spirit who thought people were basically good. “As a free spirit, she enjoyed meeting all types of people,” Pamela Novick said. “Her trusting personality ultimately led to her untimely death.” Novick also criticized people who empathized with Gore, who got to live for more than two decades, exercising, watching television, breathing and eating, she said. “My sister Robyn wasn't given a choice of how or when she wanted to die. She was violently murdered by a serial killer with no mercy and no appeals. Robyn Gayle Novick was only 30 when Marshall Lee Gore savagely beat, raped, stabbed her in the heart and strangled her to death with her own belt,” Pamela Novick, her sister, said after witnessing Gore's execution. She choked up and had to start over before continuing the 2½-page handwritten statement. “He continued to squeeze the life out of her until she took her very last breath,” Novick said, surrounded by other family members. “He then dumped her beautiful body as if one was throwing out garbage.” Novick’s elderly mother, Phyllis Novick, who lives in Ohio, did not attend Tuesday’s execution. Neither did her father. “Our dearest father, Alvin, had hoped to see this day. Unfortunately, he passed away too soon,” Pamela Novick said.

Inmate: GORE, Marshall Lee (W/M)
DOB: 08/17/63
DOC#: 401256
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Circumstances of Offense: On 04/02/88, the skeletonized remains of Susan Roark were found in Columbia County, Florida. Forensic investigation determined that the body was placed in that location at death, or within two hours following death. Susan Roark was last seen alive on 01/30/88, in Cleveland, Tennessee, in the presence of Marshall Lee Gore. Gore was waiting at a convenience store for a friend to pick him up and travel to Florida. Gore struck up a conversation with Roark and the two left in Roark’s black Ford Mustang.

Gore arrived in Tampa on 01/31/88, driving a black Ford Mustang. He convinced a friend to help him pawn several items that were later determined to have belonged to Roark. Gore then proceeded to Miami, where he abandoned Roark’s car after it was involved in a two-car accident. Gore’s fingerprint and a Miami police traffic ticket, issued to Gore, were found in the car. Lisa Ingram testified that she was riding in a car with Gore on 02/19/88 when she saw a woman’s purse in the back seat. According to Ingram, Gore told her that the purse belonged to “a girl that he had killed last night.”

Prior Incarceration History in the State of Florida:

Gore had a criminal record in Florida, prior to the Roark murder. The following information was provided by the Florida Department of Corrections website:

Factors Contributing to the Delay in Imposition of Sentence: The 3.850 Motion was pending from 05/03/94 – 06/04/01.

Case Information:

Gore filed a Direct Appeal with the Florida Supreme Court on 05/04/90, citing the following errors: denying a motion to suppress statements to police; allowing the presentation of collateral crime evidence; denying a motion of continuance to secure defense testimony; denying a motion for acquittal on Kidnapping count; failing to sequester Roark’s stepmother; allowing State to question a defense psychiatrist on Gore’s mental state; and finding of aggravating circumstances. On 04/16/92, the FSC affirmed the convictions and sentences of Gore.

Gore filed a Petition for Writ of Certiorari with the U.S. Supreme Court on 09/21/92 that was denied on 11/30/92.

Gore filed a 3.850 Motion with the Circuit Court on 05/03/94 that was denied on 06/04/01.

Gore filed a 3.850 Motion Appeal with the Florida Supreme Court on 07/10/01, citing claims of ineffective assistance of counsel. On 04/17/03, the FSC affirmed the denial of the 3.850 Motion.

Gore filed a Petition for Writ of Habeas Corpus with the Florida Supreme Court on 03/27/02, citing claims of ineffective assistance of counsel. On 04/17/03, the FSC denied the Petition.

Gore filed a Pro Se Petition for Writ of Habeas Corpus with the U.S. District Court, Middle District, on 10/09/02. On 10/10/02, the USDC denied the Petition, without prejudice, to allow for the completion of State proceedings.

Gore filed a Petition for Writ of Habeas Corpus with the U.S. District Court, Middle District, on 09/29/03 and amended the Petition on 04/22/05. The USDC denied the petition on 01/31/06.

Gore filed a Petition for Writ of Habeas Corpus with the U.S. Court of Appeals, 11th Circuit, on 03/01/06. The lower court decision was affirmed on 07/20/07, and a mandate was issued on 09/05/07.

Gore filed a pro se 3.853 Appeal with the Florida Supreme Court on 04/12/07, which was denied on 04/08/10.

On 11/16/07, Gore filed a Petition for Writ of Certiorari in the United States Supreme Court. The petition was denied on 02/19/08.

On 07/01/08, Gore filed a 3.850 Motion Appeal in the Florida Supreme Court. This motion was stricken and dismissed by the court on 10/28/08.

On 03/16/88, police found a blue tarp that covered the body of a white female, identified through dental records as Robyn Novick. Forensic investigation showed that the cause of death was multiple stab wounds to the chest and strangulation. On 03/11/88, witnesses at the Redlands Tavern saw Robyn Novick get into a yellow Corvette and leave the bar, in the company of a man, later identified in photographic lineups as Marshall Gore. On the morning of 03/12/88, Gore came to the house of David Restrepo, driving a yellow Corvette with “Robyn N” on the license plate. Restrepo was told by Gore that his girlfriend had loaned him the car. Gore and Restrepo then drove to a strip club, and Gore explained that he wanted to change his name to Robyn. The two then went to a convenience store, but after leaving the store, Gore lost control of the vehicle, which flipped several times and came to a rest with two flat tires. Gore and Restrepo abandoned the wrecked car. Police found the abandoned car and discovered credit cards, a driver license, and cigarette case, all belonging to Robyn Novick.

Additional Information:

At the time of conviction for the murder of Robyn Novick, Gore was under a sentence of death for the 01/31/88 kidnapping, robbery, and murder of Susan Roark (Columbia County Case# 88-607) and a sentence of life imprisonment for the 03/14/88 kidnapping, sexual battery, and attempted murder of Tina Corolis (Dade County Case# 88-9827). In 2002, Gore filed a notice with the Circuit Court that he was incompetent to proceed. The Circuit Court appointed experts for psychiatric evaluation. On 04/09/04, a competency hearing was held in the Circuit Court and Gore was determined to be competent.

10/01/98 FSC vacated convictions and sentences and remanded for a new trial
02/12/99 Jury returned guilty verdicts on all counts of the indictment
03/16/99 Jury recommended death by a vote of 12-0
04/19/99 Sentenced as follows: Count I First-Degree Murder – Death, Count II Armed Robbery – Life Imprisonment

Factors Contributing to the Delay in Imposition of Sentence: Gore’s 1995 convictions and sentences were overturned by the Florida Supreme Court, and he was retried and resentenced in 1999.

Case Information:

On 08/10/95, Gore filed a Direct Appeal with the Florida Supreme Court, citing multiple errors. However, the FSC focused on Gore’s claims that the prosecutor’s questions and comments during cross-examination of Gore and closing arguments were improper. On 10/01/98, the FSC agreed with Gore’s argument and reversed Gore’s convictions and sentences, remanding the case for retrial.

On 02/12/99, Gore was again convicted on all counts of the indictment, and on 04/19/99, was again sentenced to death.

On 07/27/99, Gore filed a Direct Appeal with the Florida Supreme Court, citing the following errors: double jeopardy protections preclude retrial for the murder and robbery charges; denying motion for mistrial for improper witness questioning; denying a motion for judgment of acquittal; admitting improper collateral crime evidence; finding of the aggravating circumstance of cold, calculated, and premeditated murder; allowing Gore to represent himself during the closing argument of the guilt phase and during the penalty phase of trial; and ineffective assistance of counsel during the penalty phase. On 04/19/01, the FSC affirmed the convictions and sentences.

On 06/18/02, Gore filed a 3.850 Shell Motion with the Circuit Court. On 08/27/02, the Circuit Court granted a State motion to strike the 3.850 Shell Motion.

On 10/21/02, Gore filed a 3.850 Motion Appeal with the Florida Supreme Court. On 03/10/03, the FSC ordered Gore to file an amended 3.850 Motion in the Circuit Court within 60 days.

On 06/01/04, Gore filed a 3.850 Motion with the Circuit Court that was denied on 09/13/05.

On 05/31/05, Gore filed a Petition for Writ of Habeas Corpus with the Florida Supreme Court that was denied on 09/23/05.

On 10/10/05, Gore filed a 3.850 Motion Appeal with the Florida Supreme Court that was denied on 06/25/09.

On 12/06/08, Gore filed a Petition for Writ of Certiorari in the United States Supreme Court that was denied on 02/23/09.

Gore v. State, 599 So. 2d 978 (Fla. 1992). (Direct Appeal) (Roark)

PROCEDURAL POSTURE: Defendant appealed his convictions and his sentence of death by the Circuit Court in and for Columbia County (Florida) for first-degree murder, kidnapping, and robbery.

OVERVIEW: Defendant was convicted of first-degree murder, kidnapping, and robbery and was sentenced to death. On appeal, defendant claimed that the trial court erred in denying his motion to suppress statements made to the police after his arrest on unrelated charges. The court held that the trial court properly denied the motion because there was no violation of defendant's rights under U.S. Const. amends. V or VI. Defendant also contested the admission of evidence at trial of a collateral crime. The court held that the collateral crime was sufficiently similar to serve as evidence of identity. On other alleged errors, the court ruled that defendant had no constitutional right to be present at the deposition of a defense witness and that the presence of the victim's stepmother in the courtroom during the trial did not prejudice defendant because she was not a material witness for the state. The court concluded that the state failed to establish beyond a reasonable doubt that the crime was cold, calculated, and premeditated, but found that it was harmless error because the trial court would have imposed the same sentence without that finding. The court affirmed the convictions and sentence.

OUTCOME: The court affirmed defendant's convictions and sentence of death for first-degree murder, kidnapping, and robbery, holding that there was no constitutional violation of defendant's rights. The court concluded that the state failed to establish beyond a reasonable doubt that the crime was cold, calculated, and premeditated, but held that it was harmless error because the trial court would have imposed the same sentence without that finding.

PER CURIAM.

Marshall Lee Gore appeals his convictions for first-degree murder, kidnapping, and robbery, and his sentence of death. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.
Susan Roark was last seen alive on January 30, 1988, in Cleveland, Tennessee, in the company of Marshall Lee Gore. Gore had planned to travel to Florida with a friend from Cleveland. While waiting for his friend at a convenience store, Gore struck up a conversation with Roark. Gore then entered Roark's car, a black Mustang, and they drove away.
Gore accompanied Roark to a party at the home of a friend of hers. Roark had planned to spend the night at her friend's home. Sometime between 11:30 and 12:00, Roark left to drive Gore home. She never returned. The following day Roark's grandmother reported her missing. She had been expected home by 7 a.m. that morning.

Gore arrived in Tampa on January 31, driving a black Mustang. He convinced a friend to help him pawn several items of jewelry later identified as belonging to Roark. Gore then proceeded to Miami, where police subsequently recovered Roark's Mustang after it was abandoned in a two-car accident. Gore's fingerprint was found in the car, as well as a traffic ticket which had been issued to him while he was in Miami.

On April 2, 1988, the skeletonized remains of Roark's body were discovered in Columbia County, Florida. The naked body was found in a wooded area which had been used as an unauthorized dumping ground for household garbage and refuse. Expert testimony established that the body was placed in its location either at the time of death or within two hours of death. The body could have been there anywhere from two weeks to six months prior to discovery. The forensic pathologist who testified for the State concluded that the cause of death was a homicide, given the situation in which to body was found and the fact that the neck area of the body was completely missing. The pathologist explained that this was probably due to some injury to the neck, such as a stab would or strangulation trauma, which provided a favorable environment for insects to begin the deterioration process.

Gore was found guilty of first-degree murder, kidnapping, and robbery. The jury recommended a sentence of death by a vote of eleven to one, and the trial court followed this recommendation.

Gore's first claim on this appeal is that the trial court erred in denying his motion to suppress statements he made to the police. Gore was arrested in Paducah, Kentucky, on March 17, 1988, on federal charges unrelated to this case. At this time, FBI agents informed Gore of his Miranda 1 rights. Gore signed a written waiver form, and the agents began questioning him. When the agents asked Gore how he arrived in Paducah, he stated that he didn't want to answer any more questions. The agents immediately ceased their interrogation and took Gore to a federal prison. Several days later, on March 24th, Gore was interviewed by detectives from the Metro Dade police department. At the start of this interview, Gore was again informed on his Miranda rights and waived them. 2 The detectives asked Gore various questions about his background and his knowledge of several crimes in the Miami area, as well as the Roark abduction. Gore made several statements at this time which were subsequently introduced at trial. 3

1 Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
2 Gore refused to sign a written waiver of his rights at this interview, stating that he did not want to sign anything. This is not dispositive to a finding of a valid waiver. See North Carolina v. Butler, 441 U.S. 369, 373, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979).
3 Gore stated that he did not recall whether he had ever driven a black Mustang with Tennessee license tags and that he had never met Susan Roark before in his life. He also denied any knowledge relating to another attack which subsequently resulted in his conviction on several charges. Evidence of this incident was introduced at trial as similar fact evidence.

Gore argues that he invoked his Fifth Amendment right to the assistance of counsel during police interrogations, thereby precluding any further questioning without the presence of counsel. Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990). 4 The only evidence offered in support of this assertion is the fact that Gore at some point consulted with federal public defenders. At the beginning of his interview with the Metro Dade detectives, Gore said that federal public defenders had advised him not to cooperate with law enforcement agencies. However, Gore went on to state that he declined to follow their advice, and that he wanted to speak to the police because he had done nothing wrong and had no need for an attorney.

4 Although Gore contends that he invoked this right while in federal custody, this request would have precluded questioning on state charges as well. See Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988).

The fact that Gore had been advised by an attorney at some point in his time in custody does not necessitate a finding that he invoked his Fifth Amendment right to counsel. 5 The FBI agents present at his interview in Kentucky specifically testified that Gore never requested at attorney. Their questioning was stopped because Gore wanted to get to the jail to call his father, not because he wanted the assistance of an attorney. The Metro Dade detectives also testified that Gore never requested an attorney, and that he declined their offer to call someone from the Miami public defender's office. 6 We therefore reject Gore's claim that his statements were obtained in violation of his Fifth Amendment right to counsel.

5 Gore did exercise his Fifth Amendment right to remain silent while being interrogated by federal officials. However, this did not "create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject." Michigan v. Mosley, 423 U.S. 96, 102-03, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975). The test for determining the voluntariness of statements made after the exercise of the right to remain silent is whether the right to cut off questioning has been "scrupulously honored." Id. at 104. Gore's rights were so honored here. The FBI immediately stopped the interrogation when Gore said he did not want to answer further questions. Questioning by state officials took place seven days later, after Gore was again informed of his Miranda rights and waived them.

6 We acknowledge that Gore's testimony at the suppression hearing contradicted that of the Metro Dade detectives. Gore stated that he was interrogated by these detectives from 3:15 p.m. until 1 a.m. and that the only statement he made, in response to every single question, was "I want an attorney, I want a phone, and I want to go to the bathroom." He claimed that the information the police obtained during this interview was gleaned from a federal presentence investigation. This incredulous testimony does not provide a basis for overturning the trial court's finding that Gore's statements were voluntary.

We also note that evidence was offered at the suppression hearing that an attorney from the Dade County public defender's office sought access to Gore while he was being questioned, eventually obtaining a court order to be allowed to see him. This evidence has no bearing on the issue of whether Gore requested counsel. The attorney was not present because of a request by Gore, but because she heard about him on a television news story. When Gore was informed that the attorney was present, he declined to speak with her.

While there is no credible evidence that Gore ever asserted his Fifth Amendment right to counsel, there is evidence that he asserted his Sixth Amendment right to counsel as to the federal charges. Before being questioned by state officials in Miami, Gore was brought before a federal magistrate. At this time, counsel was evidently appointed to represent him in the federal proceedings. Gore contends that because he was unquestionably represented by counsel, the police were prohibited from further interrogating him. However, the appointment of Sixth Amendment counsel is very different from a request for Fifth Amendment counsel to assist in police interrogations. As the Supreme Court recognized in McNeil v. Wisconsin:

The purpose of the Sixth Amendment counsel guarantee--and hence the purpose of invoking it--is to "protect the unaided layman at critical confrontations" with his "expert adversary," the government, after "the adverse positions of government and defendant have solidified" with respect to a particular alleged crime. Gouveia, 467 U.S., at 189, 104 S. Ct., at 2298. The purpose of the [Fifth Amendment] guarantee, on the other hand--and hence the purpose of invoking it--is to protect a quite different interest: the suspect's "desire to deal with the police only through counsel," Edwards, 451 U.S., at 484, 101 S. Ct., at 1884.
115 L. Ed. 2d 158, 111 S. Ct. 2204, 2208-09 (1991) (citations omitted).

The Court went on to hold that, while no further police-initiated interrogation on any offense can take place without the presence of counsel once the accused has invoked his Fifth Amendment right to have counsel present for questioning, the same is not true when an accused has made a request for counsel under the Sixth Amendment. While an accused may not be interrogated about the offense for which he has Sixth Amendment counsel, Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), he may be questioned about offenses for which the Sixth Amendment right has not attached. Therefore, although Gore did exercise his Sixth Amendment right to counsel on the federal charges, this did not prevent the state from questioning him on state charges.

We reject Gore's argument that this Court should not follow McNeil. We believe that the holding adopted by the Supreme Court in McNeil adequately protects the right to counsel, while at the same time recognizing that there is a difference between the appointment of counsel at a preliminary hearing such as first appearance and a request for counsel to assist in police interrogations, a difference which is also present under the Florida Constitution. See Traylor v. State, 596 So. 2d 957, 1992 Fla. LEXIS 90, 17 Fla. Law W. S 42 (Fla. 1992). Making the appointment of Sixth Amendment counsel the equivalent of a request for Fifth Amendment counsel would mean that the police could not question persons in custody about any offense once they have had some preliminary hearing at which Sixth Amendment counsel is routinely granted. As noted in McNeil:

The Sixth Amendment right to counsel attaches at the first formal proceeding against an accused, and in most States, at least with respect to serious offenses, free counsel is made available at that time and ordinarily requested. Thus, if we were to adopt petitioner's rule, most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned. Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good, society would be the loser. 111 S. Ct. at 2210. The preclusion of interrogation in these situations is simply not mandated by the Constitution. Accordingly, finding no violation of Gore's rights under either the Fifth or the Sixth Amendment, we reject Gore's claim that the trial court erred in denying his motion to suppress.

Gore next claims that the trial court erred in admitting evidence of collateral crimes through the testimony of two witnesses, Lisa Ingram and Tina Corolis. Ms. Ingram was riding in a car with Gore on February 19 when she saw a woman's purse in the back seat. She testified that Gore stated that the purse belonged to "a girl that he had killed last night." Gore argues that this conversation referred to a murder that must have taken place on the 18th of February. Therefore, his statement could not be relevant to the murder of Roark, which took place on January 31, but was instead introduced solely to show criminal propensity--that Gore had committed a different murder.

We find that this testimony was admissible as an admission with regard to the Roark homicide. § 90.803(18), Fla. Stat. (1989). When Ingram was asked if she was sure about the time that Gore said, she stated that he said he killed a girl "last night or a few nights ago." Testimony had previously established that Roark had a purse with her on the night she disappeared. While there are some timing problems with this testimony, as well as a lack of connection between Roark's purse and the purse Ingram saw in the car, these were matters to be considered by the jury in evaluating the weight to give this testimony and did not render the evidence inadmissible.

The testimony of Tina Corolis was admitted as evidence of a collateral crime. Corolis was a casual acquaintance of Gore's, whom she knew as "Tony." In March of 1988, Gore called Corolis at her home and told her that his car had broken down and he needed a ride to it. After they had driven around for several hours, Gore revealed a knife, gained control of the car, and drove to a partially wooded dumping area off a dirt road. He put the knife to Corolis' stomach, forced her to undress, and raped her. He then dragged her out of the car, punched her face against a rock, strangled her, and stabbed her in the neck, arms legs, and buttocks. Shortly thereafter Gore pawned several items of Corolis' jewelry and then proceeded to Kentucky in her car.

Similar fact evidence is generally admissible, even though it reveals the commission of another crime, as long as the evidence is relevant to a material fact in issue and is not admitted solely to show bad character or criminal propensity. Williams v. State, 110 So. 2d 654, 662 (Fla.), cert. denied, 361 U.S. 847, 4 L. Ed. 2d 86, 80 S. Ct. 102 (1959). Here, the State submitted evidence of the crimes committed against Tina Corolis in an effort to establish the identity of Roark's murderer, as well as to show Gore's intent in accompanying her that evening.

Gore argues that this case is comparable to Drake v. State, 400 So. 2d 1217 (Fla. 1981), in that the collateral crime is not sufficiently similar to the crime at issue and the claimed similarities are not unique enough to qualify as evidence of identity. In Drake, the only similarity between the murder for which Drake was being tried and the collateral evidence of two sexual assaults was that in each case the victim's hands were bound behind her back and the victim had left a bar with the defendant. In rejecting the collateral crimes evidence as evidence of the identity of the murderer, we noted that "[a] mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations." Id. at 1219.

We find that the Corolis crime does have the required pervasive similarities. The significant common features of the two crimes include the following: The victim was a small female with dark hair; Gore introduced himself as "Tony"; he had no automobile of his own; he was with the victim for a lengthy amount of time before the attack began; he used or threatened to use binding; the attack had both a sexual and pecuniary motive; the victim suffered trauma to the neck area; Gore transported the victim to the site of the attack in the victim's car; the victim was attacked at a trash pile on a dirt road, where the body was then left; Gore stole the victim's car and jewelry; he pawned the jewelry shortly after the theft; he fled in the victim's automobile, leaving the state where the victim was apprehended and staying with a friend or relative for a period of time after the crime; and he represented the car to be a gift or loan from a girlfriend or relative.

Gore argues that there are dissimilarities between the two incidents as well. In cases where there are significant dissimilarities between the collateral crime and the crime charged, the evidence tends to prove only two things--propensity and bad character--and is therefore inadmissible. See, e.g., Peek v. State, 488 So. 2d 52, 55 (Fla. 1986); Drake, 400 So. 2d at 1219. Here, however, the similarities are pervasive, and the dissimilarities insubstantial. This Court has never required the collateral crime to be absolutely identical to the crime charged. The few dissimilarities here seem to be a result of differences in the opportunities with which Gore was presented, rather than differences in modus operandi. See Chandler v. State, 442 So. 2d 171, 173 (Fla. 1983). For example, the most significant difference between the two crimes--that Roark was murdered while Corolis was not--seems to be more of a fortuitous circumstance than a reflection of Gore's intent in the Corolis crime, since he beat her, stabbed her, and left her for dead in an isolated area.

Gore also argues that the similar features of the two crimes are not sufficiently unique to serve as evidence of identity. See Drake, 400 So. 2d at 1219 (similar features of the crimes, binding of the victim's hands and meeting the victim at a bar, "not sufficiently unusual to point to the defendant in this case," and therefore irrelevant to prove identity). However, this Court has upheld the use of evidence of a collateral crime where the common points, when considered in conjunction with each other, establish a pattern of criminal activity which is sufficiently unique to be relevant to the issue of identity. Chandler, 442 So. 2d at 173. While the common points between the Corolis assault and the Roark murder may not be sufficiently unique or unusual when considered individually, they do establish a sufficiently unique pattern of criminal activity when all of the common points are considered together. The cumulative effect of the numerous similarities between the two crimes is the establishment of a unique modus operandi which points to Gore as the perpetrator of the Roark homicide. We find error in the admission of evidence of Gore's attack on Corolis.

On Gore's third point on appeal he argues that the trial judge erred in denying his motion for a continuance to secure the presence of a defense witness who was unable to travel to the trial due to her pregnancy. He also asserts error in the court's subsequent denial of his request to be present at the videotaped deposition of the witness. In this deposition the witness testified that she saw Susan Roark in Cleveland, in her black Mustang, on February 6, 1988. 7 This testimony directly contradicted the State's contention that Roark was murdered by Gore on the 31st of January.

7 We note that the State effectively called this testimony into question by the testimony of a rebuttal witness who saw Roark under the exact same circumstances as the defense witness, but remembered that the date was January 30, and that Roark indicated she was on her way to a party with some friends.

The decision to grant or deny a continuance is within the sound discretion of the trial court. Magill v. State, 386 So. 2d 1188, 1189 (Fla. 1980), cert. denied, 450 U.S. 927, 67 L. Ed. 2d 359, 101 S. Ct. 1384 (1981). Here, the case had already been continued several times, and the defense was in fact able to present the testimony of the witness at trial in the form of the videotaped deposition. We find no abuse of discretion under these circumstances.

Gore's claim that he had a right to be present at the deposition would have merit had the deposition been taken by the State to be used against him at trial. See State v. Basiliere, 353 So. 2d 820 (Fla. 1977) (Confrontation Clause mandates presence of defendant where deposition will be admitted as substantive evidence against him at trial); Fla. R. Crim. P. 3.190(j)(3). 8 However, this deposition was neither taken on the application of the State nor used against Gore at trial. The deposition was introduced into evidence by Gore. While the deposition was ordered at the suggestion of the State, in order to get around the continuance problem, this was not a State deposition. The State would have been quite content if the defense had decided not to take the deposition at all, since this testimony directly contradicted the State's case. While a defendant does have the right to be present when a witness testifies against him, no rule of criminal procedure, statute, or judicial decision has ever expanded this right into a right to be present at the deposition of a defense witness, and we decline to do so now.

8 This rule provides in pertinent part:
(3) If the deposition is taken on the application of the State, the defendant and his attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep him in the presence of the witness during the examination.

We also reject Gore's argument that this deposition falls under the defendant's right to be present "at the stages of his trial where fundamental fairness might be thwarted by his absence." Francis v. State, 413 So. 2d 1175, 1177 (Fla. 1982). Depositions do not implicate the same concerns as trial testimony. While it is crucial for a defendant to be able to consult with his attorney at trial in order to aid him in conducting the examination of a witness, the same is not true of a deposition. Here, as in any deposition, if defense counsel had failed to pursue some avenue of questioning or missed some critical fact, he was fully able to go back and supplement the deposition after consultation with the defendant. Gore had no constitutional right to be present at the deposition of this witness, and we find no abuse of discretion in the court's decision to deny this request.

Gore next argues that the trial court erred in denying his motion for acquittal on the kidnapping count. Gore notes that testimony from Roark's friends indicated that at the time Roark left the party to take Gore home she accompanied him voluntarily, that she did not ask any of her friends to go along with her when she left, and that her friends would have been willing to go along had she asked. However, other evidence indicated that at some point Roark's accompaniment of Gore ceased to be voluntary. Roark planned to return to her friend's home to spend the night. She called her grandmother that evening an told her she would be home in time for church the next morning. When her body was found in Florida, there was a shoestring tied around her wrist, suggesting that at some point she had been bound. Although there is conflicting evidence on this issue, factual conflicts are to be resolved by the jury. State v. Smith, 249 So. 2d 16, 18 (Fla. 1971). We find there was substantial, competent evidence to support the jury's verdict of guilt as to the kidnapping charge, and we therefore reject Gore's argument that the trial judge should have granted his motion for acquittal.

Gore's fifth claim is that the trial court erred in excusing Susan Roark's stepmother from the rule of witness sequestration solely because she was a relative of the victim. Article I, section 16(b) of the Florida Constitution grants to the next of kin of homicide victims "the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused." Art. I, § 16(b), Fla. Const. (emphasis added). This provision does not provide an automatic exception to the rule of sequestration. While in general relatives of homicide victims have the right to be present at trial, this right must yield to the defendant's right to a fair trial.

The rule of witness sequestration is designed to help ensure a fair trial by avoiding "the coloring of a witness's testimony by that which he has heard from other witnesses who have preceded him on the stand." Spencer v. State, 133 So. 2d 729, 731 (Fla. 1961), cert. denied, 369 U.S. 880, 8 L. Ed. 2d 283, 82 S. Ct. 1155 (1962), and cert. denied, 372 U.S. 904, 9 L. Ed. 2d 730, 83 S. Ct. 742 (1963). However, a defendant does not have an absolute right to exclude witnesses from the courtroom. "The trial judge is endowed with a sound judicial discretion to decide whether particular prospective witnesses should be excluded from the sequestration rule." Randolph v. State, 463 So. 2d 186, 191 (Fla. 1984), cert. denied, 473 U.S. 907, 87 L. Ed. 2d 656, 105 S. Ct. 3533 (1985). Of course, should the witness' presence cause some prejudice to the accused, the witness should not be allowed to remain in the courtroom. Where the rule has been invoked, a hearing should be conducted to determine whether a witness' exclusion from the rule will result in prejudice to the accused. Id. at 192.

In this case, although the trial judge did not hold a hearing to determine possible prejudice, he did hear argument from defense counsel on this issue before making his decision to exclude Ms. Roark. Counsel did not ask for any further proceeding, such as a proffer of testimony. In any event, the presence of Roark's stepmother in the courtroom during the trial did not prejudice Gore. Ms. Roark was not a material witness for the State; the extent of her participation at trial was her testimony that Susan usually wore several rings at one time and her identification of a necklace and four rings as similar to jewelry owned by Susan. We find no abuse of discretion in allowing this witness to be excluded from the rule of sequestration.

Gore's final arguments relate to the penalty phase of his trial. He first argues that the trial court erred by allowing the State to question a defense psychiatrist on the issue of Gore's mental state at the time of the offense. This witness testified on direct examination that Gore was not insane, but that his present behavior was a result of his upbringing, and that he had an antisocial personality disorder. On cross-examination, the State elicited testimony that Gore knew the difference between right and wrong, was capable of understanding the nature and quality of his acts, and was capable of conforming his conduct to the requirements of the law. This testimony, designed to show Gore's ability to be responsible for his own actions, was relevant to rebut the defense's mitigating evidence that Gore was merely the product of his upbringing. We find no abuse of discretion in allowing this testimony to be elicited.

Gore next disputes the trial judge's findings at sentencing. The court found the following as aggravating circumstances: (1) Gore had previously been convicted of other violent felonies; (2) the murder was committed while Gore was engaged in a kidnapping; (3) the murder was committed for financial gain; and (4) the murder was cold, calculated, and premeditated. 9 In mitigation the judge considered evidence of Gore's poor childhood and antisocial personality, concluding that this was insufficient mitigation to outweigh the aggravating circumstances. Gore does not dispute the finding that the murder was committed for financial gain, but argues that the remaining aggravating circumstances were improperly found.

9 § 921.141(5)(b), (d), (f), (i), Fla. Stat. (1987).

Gore first argues that the trial court erred in finding the murder to have been committed in a cold, calculated, and premeditated manner. To establish the heightened premeditation necessary for a finding of this aggravating factor, the evidence must show that the defendant had "a careful plan or prearranged design to kill." Rogers v. State, 511 So. 2d 526, 533 (Fla. 1987) (emphasis added), cert. denied, 484 U.S. 1020, 98 L. Ed. 2d 681, 108 S. Ct. 733 (1988). See also Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990), cert. denied, 498 U.S. 1110, 112 L. Ed. 2d 1106, 111 S. Ct. 1024) (1991); Rivera v. State, 561 So. 2d 536, 540 (Fla. 1990). Here, the evidence established that Gore carefully planned to gain Roark's trust, that he kidnapped her and took her to an isolated area, and that he ultimately killed her. However, given the lack of evidence of the circumstances surrounding the murder itself, it is possible that this murder was the result of a robbery or sexual assault that got out of hand, or that Roark attempted to escape for Gore, perhaps during a sexual assault, and he spontaneously caught her and killer her. There is no evidence that Gore formulated a calculated plan to kill Susan Roark. We therefore conclude that the State has failed to establish the existence of this aggravating circumstance beyond a reasonable doubt. See Drake v. State, 441 So. 2d 1079, 1082-83 (Fla. 1983), cert. denied, 466 U.S. 978, 80 L. Ed. 2d 832, 104 S. Ct. 2361 (1984); Mann v. State, 420 So. 2d 578, 581 (Fla. 1982).

Gore's arguments as to the remaining aggravating factors are without merit. In finding that Gore had previously been convicted of violent felonies, the trial judge considered convictions which have since been affirmed on appeal, see Gore v. State, 573 So. 2d 87 (Fla. 3d DCA), review denied, 583 So. 2d 1035 (Fla. 1991), thereby negating Gore's argument on this issue. We also reject Gore's argument as to the finding that the murder was committed during a kidnapping. As discussed previously, there was substantial, competent evidence to support the kidnapping charge.

Having concluded that one of the aggravating factors was improperly found, we must address the effect of this error by examining the remaining aggravating and mitigating circumstances. As nonstatutory mitigating evidence 10 the defense presented the testimony of Gore's uncle and mother, who testified that Gore's uncle and mother, who testified that Gore's father was verbally and physically abusive and set a poor example by proudly engaging in criminal activities. Most of the father's physical abuse was directed at Gore's mother. The defense also presented the testimony of a psychiatrist who concluded that Gore was a product of his upbringing and had an antisocial personality disorder. In considering the mitigating evidence, the trial judge noted that Gore was rational and possesses above average intelligence, that he participated in legal arguments and defenses, 11 and that the defense psychiatrist specifically testified that Gore had the ability to conform his conduct to the law.

10 Gore argued that his age at the time of the crime, twenty-four, was a statutory mitigating factor. In rejecting this argument, the judge noted that Gore was streetwise, had completed two years of high school, and was of average or above intelligence. We find substantial competent evidence to support the trial court's rejection of this mitigating circumstance. See Nibert v. State, 574 So. 2d 1059, 1062 (Fla. 1990). 11 Gore even conducted the cross-examination of one of the State's witnesses, Tina Corolis.

In contrast to this mitigation we must consider the three remaining aggravating circumstances, as well as the jury's recommendation of death. Under the facts of this case, there is no reasonable possibility the trial court would have concluded that the three valid aggravating factors were outweighed by the mitigating evidence. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). We therefore conclude that the trial court would have imposed the same sentence without the finding that the murder was cold, calculated, and premeditated, and that the erroneous finding of this factor was harmless beyond a reasonable doubt.

For the reasons expressed, we affirm Gore's convictions and sentence of death. It is so ordered. SHAW, C.J. and OVERTON, McDONALD, GRIMES and HARDING, JJ., concur.

BARKETT, J., concurring in result only.

For the reasons expressed in my opinion in Traylor v. State, 596 So. 2d 957, 1992 Fla. LEXIS 90, 17 Fla. Law W. S 42 (Fla. 1992) (Barkett, J., concurring in part, dissenting in part), I dissent from the portion of the majority opinion that adopts the "rationale" and holding of McNeil v. Wisconsin, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991). I concur in the result, however, because I believe the admission of Gore's exculpatory statements in this case was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

The facts pertaining to this issue are relatively simple. Gore was arrested in Kentucky on a federal parole violation and subsequently transported to Miami. Before being turned over to state authorities, Gore was brought before a federal magistrate, at which point counsel was appointed to represent him and at which point, as the majority recognized, Gore exercised his Sixth Amendment right to counsel. 12

12 I use the terms "Fifth" and "Sixth" Amendment, as opposed to "article I, section 9" and "article I, section 16" for purposes of consistency with the majority opinion. I note that under the doctrine of primacy announced in Traylor v. State, 596 So. 2d 957, 1992 Fla. LEXIS 90, 17 Fla. Law W. S 42 (Fla. 1992), slip op. at 8-9, I would have first analyzed Gore's rights under the Florida Constitution before turning to federal constitutional law.

Nevertheless, the majority determines that even though Gore exercised his Sixth Amendment right to counsel, the police were not thereafter prohibited from questioning Gore while he was in custody regarding the state murder charges because Gore had only invoked his right to counsel with respect the the federal charges. Although I agree that the purposes and extent of the Fifth and Sixth Amendment rights to counsel differ in some respects, I find this "charge specific" argument unpersuasive in the context of police-initiated custodial interrogation. 13

13 The phrase "charge specific" refers to the argument that invocation in a judicial proceeding of the Sixth Amendment right to counsel as to one charge imposes no restrictions on police inquiry as to separate charges for which the right has not attached. See McNeil v. Wisconsin, 115 L. Ed. 2d 158, 111 S. Ct. 2204, 2207 (1991); Traylor, slip op. at 23 & n. 31.
The majority acknowledges that where an accused invokes the Fifth Amendment right to counsel, no further police-initiated custodial interrogation can occur without the presence of counsel. Majority op. at 982; art. I, § 9, Fla. Const.; see Traylor, slip op. at 966. However, the majority finds that because Gore did not specifically refer to the Fifth Amendment when asked for counsel at the first appearance hearing, "there is no credible evidence that Gore ever asserted" it. Majority op. at 6. 14

14 Because Gore exercised his article I, section 16/Sixth Amendment right to counsel, I would hold that Gore also invoked his article I, section 9/Fifth Amendment right to counsel with regard to custodial interrogation and therefore would find that the police, both federal and state, were prohibited from conducting a custodial interrogation outside the presence of Gore's attorney.

The majority thus agrees with McNeil that there is a difference between requesting "counsel at a preliminary hearing such as a first appearance [Sixth Amendment] and a request for counsel to assist in police interrogations [the Fifth Amendment]." Majority op. at 7. However, as I stated in Traylor, any such arbitrary distinction between two separate guarantees of the same right--the right to have a lawyer's assistance in dealing with the power of the state during custodial interrogation--makes no sense. 15

15 Once again, as a point of clarification, I am saying that the Sixth Amendment is not charge specific with regard to custodial interrogation although it may indeed be charge specific in other contexts as to which there is yet no prosecution.

The "rationale" set forth in McNeil for distinguishing the Fifth and Sixth Amendment rights to counsel is nonexistent. The McNeil majority writes that: The purpose of the Sixth Amendment counsel guarantee--and hence the purpose of invoking it--is to "protect the unaided layman at critical confrontations" with his "expert adversary," the government, after "the adverse positions of government and defendant have solidified" with respect to a particular alleged crime.
111 S. Ct. at 2208-09 (citations omitted) (some emphasis added). The McNeil majority then states:
The purpose of the [Fifth Amendment] guarantee, on the other hand--and hence the purpose of invoking it--is to protect a quite different interest: the suspect's "desire to deal with the police only through counsel."
Id. at 2209 (citation omitted) (emphasis added). McNeil's conclusion that the Fifth and Sixth Amendments differ with respect to custodial interrogation is anything but self-evident. The reason given by the McNeil majority for invoking Sixth Amendment counsel--to protect the unaided laymen at critical confrontations with the government--is exactly the same reason given for invoking the Fifth Amendment right to counsel: the desire to deal with the police only through counsel. Surely, the police are part of the "government" and police interrogation of an accused is a "critical confrontation." Thus, the Fifth Amendment right to counsel is necessarily a subset of the Sixth Amendment right to counsel in the context of custodial interrogation. Therefore, if Sixth Amendment counsel is invoked to aid in "critical confrontations with the government," then quite clearly Fifth Amendment counsel--which is invoked for protection against the police during custodial interrogation--is included within that invocation. In sum, the two rights to counsel are coextensive, at least with respect to custodial interrogation.

Perhaps in recognition of its forced logic, the McNeil majority concedes that the reason for its strained legal conclusion is to allow police access to those accuseds who have not been released on bail so that the police can conduct further interrogations. 16 See 111 S. Ct. at 2210. But such "reasoning," to which the majority of this Court subscribes, is neither reasoned not fair. 17 To the contrary, it underscores and approves the discriminatory application of our criminal laws. The only accuseds who are sitting in jail after a first appearance, and hence subject to custodial interrogation without lawyers, are those who are indigent and therefore too poor to post bail. Defendants with financial resources can hire their own lawyers and post immediate bail. Thus, any questioning of these accuseds, if it takes place at all, will not take place in the coercive atmosphere of a jail.

16 I agree with Justice Stevens's observation that the "decision will have little, if any, practical effect on police [interrogation] practices" because defense lawyers will now simply clarify at first appearances that the right to counsel is also being invoked for purposes of custodial interrogation by the police. McNeil, 111 S. Ct. at 2212 (Stevens, J., dissenting).
17 The majority seems to fear that providing lawyers to defendants in custody will somehow hamper effective law enforcement by eliminating custodial confessions. Similar arguments were discounted by the United States Supreme Court in its landmark decision in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The Court predicted that "the limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement." Id. at 481. Subsequent studies concluded that there was no substantial reduction in confessions as a result of informing suspects of their "Miranda rights." Charles J. Ogletree, Are Confessions Really Good for the Soul? A Proposal to Mirandize Miranda, 100 Harv. L. Rev. 1826, 1827 & n.5 (1987) see e.g., Special Project, Interrogations in New Haven: The Impact of Miranda, 76 Yale L.J. 1519, 1613 (1967); Stephen J. Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435, 455-460 (1987). But see Stephen J. Markman, The Fifth Amendment and Custodial Questioning: A Response to "Reconsidering Miranda", 54 U. Chi. L. Rev. 938, 945-948 (1987) (arguing that the empirical studies were flawed).

Today's decision not only discriminates against those who are poor, but also discriminates against those who are uneducated and those who are unfamiliar with legal terminology. The McNeil majority made clear that should an accused add the magic words, "I 'desire . . . the assistance of an attorney in dealing with custodial interrogation by the police,'" see McNeil, 111 S. Ct. at 2209, the accused would acquire the protections under both the Fifth and Sixth Amendments. Consequently, those educated defendants conversant with McNeil (and now Gore) would know to add these magic words which would insulate them from being approached (and reapproached) in their cells for interrogation. But the unrepresented and uneducated who simply say, "I need a lawyer and cannot afford to hire one," would not be insulated from being constantly approached in their cells without their lawyers' presence. As the Michigan Supreme Court eloquently explained in People v. Bladel:

Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that [the] defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.
421 Mich. 39, 365 N.W.2d 56, 67 (1984), aff'd sub nom. Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986) (quoted in McNeil, 111 S. Ct. at 2213 (Stevens, J., dissenting)).

It is a meaningless and cruel game to tell indigent and usually uneducated defendants that they are entitled to a state-paid lawyer, but only if they can guess the right way to ask for one. 18 Under McNeil and the majority's holdings today, indigent incarcerated accuseds need lawyers to tell them how to ask for a lawyer in order to fully enjoy the right to a lawyer's assistance in the first place.

18 Ironically, the police have not been held to such a strict standard in advising suspects of their Miranda rights, and courts have consistently held that no magic words are needed. See, e.g., California v. Prysock, 453 U.S. 355, 359, 69 L. Ed. 2d 696, 101 S. Ct. 2806 (1981); State v. Delgado-Armenta, 429 So. 2d 328, 329-31 (Fla. 3d DCA 1983).

Regrettably, today's decision comes on the heels of this Court's release of the Racial and Ethnic Bias Study Commission Report, "Where the Injured Fly for Justice." Report and Recommendations of the Florida Supreme Court Racial and Ethnic Bias Study Commission (December 11, 1991) (on file with the Office of the State Courts Administrator). The interrelation of minority status and poverty further means that today's opinion will give police a coercive and unfair advantage over a specific class of defendants--uneducated and indigent minorities.

The majority's adoption of McNeil and its discriminatory impact on indigent minorities is even more disappointing in light of the Court's statement in Traylor that "the Equal Protection Clause of our state Constitution was framed to address all forms of invidious discrimination under the law, including any persistent disparity in the treatment of rich and poor." Traylor, slip op. at 25 (footnote omitted). The right to court-appointed counsel is supposed to be the basic mechanism which converts this rhetoric of "justice for all" and "equal access to courts" into a semblance of reality. The proclamation in Traylor that "each Florida citizen--regardless of financial means--stands on equal footing with all others in every court of law throughout our state," slip op. at 25-26, is sadly untrue.

PROCEDURAL POSTURE: Defendant appealed from the denial of his motion for postconviction relief by the Circuit Court in and for Columbia County (Florida) and petitioned for a writ of habeas corpus, following his conviction for murder and a death sentence.

OVERVIEW: Defendant contended that the trial court improperly denied 11 of his postconviction claims. In a per curiam opinion, the appellate court held the postconviction motion was properly denied. Defendant insufficiently pleaded his allegation of a Brady violation. Trial counsel's decision not to move for a change of venue during guilt phase was strategic, and was not ineffective assistance. Trial counsel conducted a full investigation and had strategic reasons for presenting the evidence at the penalty phase. The petition for a writ of habeas corpus was denied, as appellate counsel was not ineffective. Appellate counsel zealously litigated defendant's appeal, raising seven issues, and convincing the appellate court that the evidence was insufficient to support the CCP aggravator. The evidence presented on appeal was sufficient to support the jury's verdict of first-degree murder. Appellate counsel was not ineffective for failing to raise an issue as to the failure of trial counsel to excuse a juror for cause. An issue as to possible prejudice resulting from the jury pool seeing defendant in shackles was not preserved for appeal and did not rise to the level of fundamental error.

PER CURIAM.

Marshall Lee Gore, an inmate under sentence of death, appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1),(9), Fla. Const. For the reasons that follow, we affirm the denial of Gore's postconviction motion and deny the petition for habeas corpus.

FACTS

The facts of the case are set out in this Court's 1992 opinion affirming Gore's conviction and sentence.
Susan Roark was last seen alive on January 30, 1988, in Cleveland, Tennessee, in the company of Marshall Lee Gore. Gore had planned to travel to Florida with a friend from Cleveland. While waiting for his friend at a convenience store, Gore struck up a conversation with Roark. Gore then entered Roark's car, a black Mustang, and they drove away.
Gore accompanied Roark to a party at the home of a friend of hers. Roark had planned to spend the night at her friend's home. Sometime between 11:30 and 12:00, Roark left to drive Gore home. She never returned. The following day Roark's grandmother reported her missing. She had been expected home by 7 a.m. that morning.

Gore arrived in Tampa on January 31, driving a black Mustang. He convinced a friend to help him pawn several items of jewelry later identified as belonging to Roark. Gore then proceeded to Miami, where police subsequently recovered Roark's Mustang after it was abandoned in a two-car accident. Gore's fingerprint was found in the car, as well as a traffic ticket which had been issued to him while he was in Miami.
On April 2, 1988, the skeletonized remains of Roark's body were discovered in Columbia County, Florida. The naked body was found in a wooded area which had been used as an unauthorized dumping ground for household garbage and refuse. Expert testimony established that the body was placed in its location either at the time of death or within two hours of death.
Gore v. State, 599 So. 2d 978, 980 (Fla.), cert. denied., 506 U.S. 1003, 121 L. Ed. 2d 545, 113 S. Ct. 610 (1992).

In addition to this evidence, the State introduced the testimony of two other witnesses. Specifically, Lisa Ingram testified that she "was riding in a car with Gore on February 19 when she saw a woman's purse in the back seat. She testified that Gore stated that the purse belonged to 'a girl that he had killed last night.'" Id. at 983. We concluded on appeal that "this testimony was admissible as an admission with regard to the Roark homicide." Id. Further, the State presented the collateral crime testimony of another victim, Tina Corolis:
The testimony of Tina Corolis was admitted as evidence of a collateral crime. Corolis was a casual acquaintance of Gore's, whom she knew as "Tony." In March of 1988, Gore called Corolis at her home and told her that his car had broken down and he needed a ride to it. After they had driven around for several hours, Gore revealed a knife, gained control of the car, and drove to a partially wooded dumping area off a dirt road. He put the knife to Corolis' stomach, forced her to undress, and raped her. He then dragged her out of the car, punched her face against a rock, strangled her, and stabbed her in the neck, arms, legs, and buttocks. Shortly thereafter Gore pawned several items of Corolis' jewelry and then proceeded to Kentucky in her car.
Id. We concluded on direct appeal that the "cumulative effect of the numerous similarities between the two crimes is the establishment of a unique modus operandi which points to Gore as the perpetrator of the Roark homicide." Id. at 984. The jury found Gore guilty of first-degree murder, kidnapping, and robbery. See id. at 980.

The jury recommended a sentence of death by a vote of eleven to one, and the trial court followed this recommendation after finding the following aggravating circumstances: (1) Gore had previously been convicted of other violent felonies; (2) the murder was committed while Gore was engaged in a kidnapping; (3) the murder was committed for financial gain; and (4) the murder was cold, calculated, and premeditated. See id. at 986. The judge concluded that Gore's poor childhood and antisocial personality were insufficient mitigation to outweigh the aggravating circumstances. See id.

Gore raised seven issues on direct appeal. 1 This Court found six of Gore's claims to be without merit, but struck the CCP aggravator. See id. at 987. This court performed a harmless error analysis and concluded that based on the three remaining aggravators and the lack of substantial mitigation, there was no reasonable probability that the trial court would have imposed a life sentence without the CCP aggravator. Accordingly, this Court affirmed the convictions and sentence of death. See id.

1 Gore argued that the trial court erred in (1) denying the motion to suppress Gore's statements; (2) allowing the State to present evidence of collateral crimes; (3) denying a motion for continuance regarding a defense witness and in not allowing Gore to attend that witness's deposition; (4) denying the motion for acquittal as to the kidnapping charge; (5) excusing the victim's stepmother from the rule of sequestration; (6) allowing the prosecutor to question the defense expert about Gore's sanity at the time of the offense; and (7) finding the CCP, prior conviction, and murder in the course of a kidnapping aggravators. See Gore, 599 So. 2d at 980-87.

Gore filed an amended motion to vacate the judgments of conviction and sentence in which he made multiple claims of error. Following a Huff 2 hearing, the trial court granted a hearing only on Gore's ineffective assistance of counsel allegations during the guilt and penalty phases. The trial court found the majority of the claims to be procedurally barred because the claims raised substantive issues on the merits that were not properly before the court in a postconviction motion.

2 Huff v. State, 622 So. 2d 982 (Fla. 1993).

After an evidentiary hearing at which Jimmy Hunt, Gore's trial counsel, was the only witness, the trial court entered an order denying all of Gore's ineffectiveness claims for postconviction relief. Gore now appeals the trial court's summary denial of eleven of his postconviction claims 3 and the trial court's denial of relief of the ineffectiveness claims during the guilt and penalty phases following the evidentiary hearing. He also petitions this Court for habeas corpus relief.

3 Gore alleges that the trial court erred in summarily dismissing his claims that trial counsel was ineffective for failing to object to the following: (1) the State of Florida's jurisdiction to try Gore; (2) the prosecutor's misconduct rendered the trial fundamentally unfair; (3) there was insufficient evidence of premeditation; (4) the prosecutor's comments during voir dire improperly advised the jury that the death penalty was mandatory in certain circumstances; (5) Gore's mental health evaluation was inadequate pursuant to Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985); (6) the trial court minimized the jury's role during sentencing in violation of Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985); (7) the trial court prepared its sentencing order without giving the defendant an individualized hearing in violation of Spencer v. State, 615 So. 2d 688 (Fla. 1993); (8) the trial court improperly failed to excuse jurors who were properly challenged for cause; (9) the trial court had an improper ex parte communication with at least one prospective juror; (10) the trial court should have ordered a change of venue because pretrial publicity precluded the selection of a fair and impartial jury; and (11) the State committed a violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), in failing to turn over a phone book containing exculpatory or impeachment material that was in its possession, or, in the alternative, defense counsel was ineffective for failing to procure the book.

3.851 APPEAL

As an initial matter, we dispose of several of Gore's claims because they are procedurally barred or facially or legally insufficient, 4 conclusively refuted by the record, 5 or without merit as a matter of law. 6

4 Claims (2), (3), (4), (6), (8), and (9) are procedurally barred because these claims, which concern issues that should have been raised on direct appeal, are not properly presented in a motion for postconviction relief. Gore cannot now attempt to resurrect these issues as ineffective assistance of counsel claims on appeal to this Court by making conclusory allegations of counsel's ineffectiveness. Moreover, the record conclusively refutes these claims.
5 To the extent that Gore argues in claim (1) that trial counsel was ineffective for failing to argue that the State lacked jurisdiction to try Gore, this claim is conclusively refuted by the record. The record reflects that in moving for judgment of acquittal Gore's trial counsel argued that the trial court lacked jurisdiction to try Gore. Moreover, the substantive issue raised in claim (1) is without merit as a matter of law. The State had jurisdiction to try Gore because Susan Roark's body was found in Florida.
6 The substantive issue raised in claim (7) is without merit as a matter of law. This Court decided Spencer, 615 So. 2d at 688, which mandated the requirement of an individualized hearing prior to sentencing, after Gore's trial and 1992 direct appeal. Thus, at the time of Gore's trial and direct appeal, there was no error in preparing a sentencing order without giving the defendant a hearing. See Nelms v. State, 596 So. 2d 441, 442 (Fla. 1992); see also Asay v. Moore, 828 So. 2d 985, 991 (Fla. 2002) (holding that counsel is not ineffective for failing to object to sentencing procedures contrary to Spencer, when sentencing occurred prior to the Spencer decision).

As to Gore's assertion that the State committed a Brady violation in failing to turn over a phone book containing exculpatory or impeachment material that was in its possession, or, in the alternative, defense counsel was ineffective for failing to procure the book, we conclude that the trial court did not err in denying this claim as being insufficiently pled.

As to any Brady violation, a defendant must prove: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.
Way v. State, 760 So. 2d 903, 910 (Fla. 2000) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 144 L. Ed. 2d 286, 119 S. Ct. 1936 (1999)). For Brady purposes, suppression of evidence is prejudicial only if the information is material. See Strickler, 527 U.S. at 282.

In this case Gore alleged that the State improperly withheld a phone book containing either the names of exculpatory witnesses or "considerable and compelling evidence that was obviously exculpatory." However, this claim was insufficiently pled in the trial court because Gore cited no facts that supported the allegation. Other than the conclusory statement that "the State violated discovery rules and case law for either concealing or otherwise failing to disclose the book," Gore presented no factual basis that the "book" ever existed, that the State ever had the book in its possession and concealed the book, or that the book contained material exculpatory information. Gore did not list the names from the phone book of people who could have provided exculpatory information, nor did he state what exculpatory information these witnesses could have provided. In sum, Gore left the trial court with absolutely no idea what evidence was "withheld," how that evidence was material, or how he was prejudiced by the State's failure to disclose it. Gore's ineffective assistance of counsel claim on this issue was similarly insufficiently pled due to the same lack of a factual basis. 7 The trial court did not err in summarily denying these claims as insufficiently pled.

7 Further, to the extent that Gore asserted in his motion that he told trial counsel that the book existed and trial counsel failed to procure the book, at the evidentiary hearing Gore's postconviction counsel extensively questioned Jimmy Hunt, Gore's trial counsel, regarding the potential exculpatory witnesses and information provided by Gore. Hunt testified that he thoroughly investigated to the best of his ability all the potential exculpatory witnesses and information of which he was made aware. Gore presented no testimony or evidence to contradict Hunt's testimony.

Ineffective Assistance of Counsel

We next address whether the trial court erred when it denied Gore relief on his allegations of ineffective assistance of counsel following an evidentiary hearing. To establish a claim that defense counsel was ineffective, a defendant must establish deficient performance and prejudice, as set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). See Rutherford v. State, 727 So. 2d 216, 218 (Fla. 1998). As to the first prong, deficient performance, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Strickland, 466 U.S. at 688. Second, as to the prejudice prong, the deficient performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. at 694; Rutherford, 727 So. 2d at 220. Further, when it is clear that the defendant cannot establish prejudice under the second prong of Strickland, the deficiency prong need not be evaluated. See Rutherford, 727 So. 2d at 221.

A. Guilt Phase Ineffective Assistance of Counsel

In this appeal, Gore alleges that his trial counsel was ineffective for failing to move for a change of venue due to pretrial publicity. An evidentiary hearing was held on this claim. 8 In reviewing a defendant's postconviction motion alleging ineffective assistance of counsel, this Court defers to the factual findings of the trial court to the extent that the findings are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts. See Stephens v. State, 748 So. 2d 1028, 1031-32 (Fla. 1999). In its order denying relief on this issue, the trial court in this case found:
Mr. Hunt testified that there was no "media blitz" concerning this case, and the Defendant produced no evidence at the hearing to the contrary. Mr. Hunt moved for individual voir dire, which the Court granted, and the record of voir dire shows no evidence that the prospective jurors had been unduly affected by any pretrial publicity. The Defendant has not demonstrated ineffectiveness regarding this allegation.

The record reveals that Hunt was able to conduct individual voir dire on all the jurors who were seated regarding their potential exposure to media coverage. Further, at the evidentiary hearing, Hunt testified that there was very little electronic or print media coverage either prior to or during the trial. Hunt further testified that he talked to the defendant about a change of venue but decided not to seek one because, compared to other murder trials, there was relatively little known about Gore's case in the county.
Hunt was the only witness at the evidentiary hearing. Gore has not presented evidence that Hunt's description of the level of publicity surrounding the trial was inaccurate or that the jury was otherwise tainted by pretrial publicity. Thus, the trial court's findings that there was no "media blitz" surrounding this trial and that the prospective jurors had not been unduly affected by any pretrial publicity are supported by competent, substantial evidence and, accordingly, will not be disturbed by this Court.

8 We note that the trial court gave Gore ample opportunity to present evidence at the evidentiary hearing on his multiple claims of ineffectiveness of counsel at the guilt and penalty phase contained in his postconviction motion. We conclude that the record fails to demonstrate error in denying relief following an evidentiary hearing on any of the claims of ineffectiveness raised in his postconviction motion. However, because on appeal Gore focuses his claims of ineffectiveness on trial counsel's failure to move for change of venue and trial counsel's failure to investigate or provide mitigation to the mental health experts or the jury, we address these assertions in more detail.

Applying the law to the trial court's factual findings, we conclude that Gore has not demonstrated how Hunt's strategic decision not to seek a change of venue was "not reasonable under the norms of professional conduct." Rolling v. State, 825 So. 2d 293, 298 (Fla. 2002). Thus, Gore is unable to establish that trial counsel's performance was deficient under the first prong of Strickland.
Moreover, even if counsel's performance was deficient, Gore has neither alleged nor demonstrated how such deficiency prejudiced him by undermining confidence in the outcome of the trial. In determining prejudice in a claim that counsel has been ineffective in failing to move for a change of venue, this Court has stated that the defendant must, at a minimum, "bring forth evidence demonstrating that there is a reasonable probability that the trial court would have, or at least should have, granted a motion for change of venue if [defense] counsel had presented such a motion to the court." Wike v. State, 813 So. 2d 12, 18 (Fla. 2002) (quoting Meeks v. Moore, 216 F.3d 951, 961 (11th Cir. 2000)). Gore has presented no evidence to indicate that the trial court would have granted the motion for the change of venue. Therefore, he cannot establish prejudice under the second prong of Strickland. We hold that the trial court did not err in denying this claim following the evidentiary hearing.

B. Penalty Phase Ineffective Assistance of Counsel

In this claim, Gore alleges that trial counsel was ineffective for failing to investigate and provide mental mitigation information to experts and for failing to present such information during the penalty phase. The trial court held an evidentiary hearing on this claim. 9

9 In a separate claim, Gore alleged in the trial court that "mental health experts who evaluated Mr. Gore did not render adequate mental health assistance as required by Ake v. Oklahoma." The trial court denied the Ake claim as procedurally barred in that it could and should have been raised on direct appeal. In this appeal, Gore presents no argument regarding the Ake claim. Thus, we conclude that the trial court properly denied an evidentiary hearing on this claim because it is either procedurally barred or insufficiently presented for review. See generally Shere v. State, 742 So. 2d 215, 217 n.6 (Fla. 1999) (finding that issues raised in appellate brief which contain no argument are deemed abandoned).

In its order denying the relief on this issue, the trial court found:
In this claim the Defendant alleges that trial counsel was ineffective in discovery and presentation of mitigating evidence at the penalty phase. According to the amended motion, the Defendant has a mild to medium brain damage, attention deficit disorder, paranoia, and a history of polysubstance abuse, and the sentencing jury never heard of those afflictions or his intoxication and child abuse. The amended motion alleges that, if given an evidentiary hearing, "witnesses including Barry Crown, Ph.D, family members and relatives of Marshall Gore, any and all witnesses at trial and those persons present with Marshall Gore near the time of the crime can be called as witnesses." Although granted an evidentiary hearing, the Defendant presented no testimony from any of the just-listed people and failed to prove the conclusory allegations contained in the amended motion.

Instead, Mr. Hunt testified that he interviewed the Defendant's mother and father, three sisters, and his aunt and uncle with the aim of developing mitigating evidence. Other than the mother and uncle, the Defendant's family was less than helpful. A sister that counsel thought would testify refused to do so and later told counsel that the Defendant threatened to kill her if she testified. The Defendant's father told Mr. Hunt that, if called to testify, he would do everything he could to see that the Defendant was sentenced to death.
Mr. Hunt also testified that he contacted the Defendant's prior counsel in Miami who sent him several mental health evaluations and that he secured a copy of the Defendant's federal PSI that included a psychiatric evaluation. Counsel also secured the appointment of psychiatrist Umesh Mhatre and psychologist Harry Krop, who both evaluated the Defendant. Both doctors diagnosed the Defendant as having an antisocial personality disorder.
Dr. Krop did not testify at the penalty phase, and counsel testified at the hearing that Dr. Krop told him he did not think his testimony would benefit the Defendant. Dr. Mhatre did testify at the penalty phase, and the Court found that nonstatutory mitigation had been established based on the testimony from Mhatre, the mother, and [the] uncle.

Based on the testimony at the evidentiary hearing, it is obvious to this Court that trial counsel conducted a reasonable investigation and had strong, strategic reasons for presenting the evidence he did at the penalty phase or for not calling other witnesses. . . . The Defendant failed to prove that counsel was deficient in regards to the penalty phase and that he was prejudiced by any deficient representation.
All of the trial court's statements regarding Hunt's testimony at the evidentiary hearing are supported by the postconviction record and the original trial record. Furthermore, to the extent that Gore argues that trial counsel ineffectively failed to provide experts or the jury with evidence as to Gore's drug use and suicide attempt, this claim is conclusively refuted by the record.

At the evidentiary hearing, Hunt testified that he provided the experts with everything that he had at his disposal that might assist them in evaluating Gore, including that Gore attempted suicide as a young man and went through a drug overdose. When questioned as to why Hunt did not present testimony at the penalty phrase regarding Gore's drug overdose, Hunt testified that it was a judgment call because, in his view, the jury generally does not view a previous drug overdose as a mitigator. Furthermore, Hunt testified that there was no evidence of drug abuse at the time of the crimes. There is nothing in the record before us that contradicts this testimony. The trial court's finding that "trial counsel conducted a reasonable investigation and had strong, strategic reasons for presenting the evidence he did at the penalty phase or for not calling other witnesses" is supported by competent, substantial evidence and will not be disturbed by this Court.

Applying the law to the trial court's factual findings, we conclude that Gore has failed to establish how trial counsel's performance fell below reasonable standards of professional competence. This Court has held that when an attorney has made a tactical decision not to present mitigating evidence after a full investigation, counsel is not ineffective. See generally Porter v. State, 478 So. 2d 33, 35 (Fla. 1985). Moreover, an attorney's reasoned decision not to present evidence of dubious mitigating value does not constitute ineffective assistance. See Gorby v. State, 819 So. 2d 664, 675 (Fla. 2002). In this case, there is no indication that the investigation conducted by Gore's counsel was incomplete. Furthermore, there is no evidence that could lead this Court to conclude that counsel's decision not to present certain evidence in mitigation was anything other than a reasonable trial strategy. Thus, Gore cannot demonstrate deficiency under the first prong of Strickland.
Moreover, even if counsel was deficient, Gore has neither alleged nor demonstrated how such deficiency prejudiced him by undermining confidence in the sentencing outcome. Thus, we conclude that the trial court did not err in denying this claim following an evidentiary hearing.

PETITION FOR WRIT OF HABEAS CORPUS

In Gore's first habeas claim he asserts that appellate counsel was ineffective for not raising the sufficiency of the evidence of premeditation on direct appeal. 10 In Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000), we summarized the basis for a claim of ineffective assistance of appellate counsel:
Habeas petitions are the proper vehicle to advance claims of ineffective assistance of appellate counsel. . . .

When analyzing the merits of the claim, the criteria for proving ineffective assistance of appellate counsel parallel the Strickland standard for ineffective trial counsel. Thus, the Court's ability to grant habeas relief on the basis of appellate counsel's ineffectiveness is limited to those situations where the petitioner establishes first, that appellate counsel's performance was deficient because the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second, that the petitioner was prejudiced because appellate counsel's deficiency compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. If a legal issue would in all probability have been found to be without merit had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective. This is generally true as to issues that would have been found to be procedurally barred had they been raised on direct appeal.
(Citations and internal quotation marks omitted.)

10 Gore's second habeas claim, that appellate counsel was ineffective for failing to argue that the circumstantial evidence was insufficient to support first-degree murder, is derivative of Gore's first claim. For purposes of this appeal we address and dispose of these two claims together.

In this case, Gore's counsel raised seven issues on direct appeal. See Gore, 599 So. 2d at 980. There is no indication that appellate counsel was less than zealous in advocating those claims. To the contrary, appellate counsel's effective advocacy convinced this Court that the evidence was insufficient to support the CCP aggravator. See id. at 986.
We conclude that there is no basis for finding appellate counsel's performance on appeal to be deficient for failure to specifically argue the insufficiency of evidence as to premeditation. Further, Gore cannot establish prejudice because the evidence presented on appeal was sufficient to support the jury's verdict of first-degree murder. Thus, we deny Gore relief on this claim.

Next, Gore argues that appellate counsel was ineffective for not raising on direct appeal the failure of the trial court to excuse juror Hollingsworth for cause. This issue is without merit because defense counsel did not run out of peremptory challenges prior to the jury being sworn. See Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990) (stating that to show reversible error, a defendant must show that all peremptories have been exhausted and that an objectionable juror had to be accepted). Indeed, Hunt reaffirmed during the evidentiary hearing that he did not exhaust all of his peremptory challenges during voir dire. Thus, Gore cannot now demonstrate any prejudice. We deny Gore relief on this claim.

In his last claim Gore argues that appellate counsel was ineffective for failing to raise on direct appeal the issue of Gore possibly having been seen shackled by the jury pool immediately prior to voir dire. This issue was not preserved for appellate review. The record reveals that the court offered trial counsel the opportunity to voir dire the jury pool regarding whether or not they had witnessed Gore being shackled. Trial counsel declined because he felt it would "emphasize" the issue. Thus, this issue was not preserved for appeal and, in the absence of fundamental error, appellate counsel cannot be ineffective for failing to raise an unpreserved claim. See Rutherford, 774 So. 2d at 645; Hardwick v. Dugger, 648 So. 2d 100 (Fla. 1994).

This issue is not fundamental error. In Sireci v. Moore, 825 So. 2d 882 (Fla. 2002), in holding that appellate counsel was not ineffective for failing to argue on direct appeal that the defendant's shackling in the presence of the jury violated the defendant's constitutional rights, this Court noted that there is nothing in the record that leads us to conclude that the jury ever saw Mr. Sireci in restraints. Indeed, the trial court here made every effort to keep the petitioner's restraints from being viewed by the jury by placing tables in front of his seat. . . . The longstanding principle that trial judges must have discretion to properly manage their courtrooms, in combination with a complete absence of evidence indicating any prejudice to the petitioner, requires this Court to deem this argument without merit. Id. at 888. Similar to Sireci, in this case there is nothing in the record to indicate that the trial court erred in the manner in which this issue was handled or to conclude that there was any prejudice to Gore that rises to the level of fundamental error. Thus, appellate counsel was not ineffective for failing to raise this issue on appeal. We deny Gore relief on this claim.

CONCLUSION

For the above reasons, we affirm the lower court's denial of Gore's rule 3.851 motion for postconviction relief and deny the petition for a writ of habeas corpus. It is so ordered. ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

PROCEDURAL POSTURE: After the United States District Court for the Middle District of Florida denied a state court death row inmate's habeas petition, a certificate of appealability was granted on the issue of whether the Florida Supreme Court's decision, upholding the trial court's refusal in the inmate's murder trial to suppress certain statements the inmate made to police detectives, infringed his Fifth and Sixth Amendment rights.

OVERVIEW: The inmate invoked his Fifth Amendment right to remain silent during initial Federal Bureau of Investigation (FBI) questioning after being arrested for probation violations. The statements at issue were later made to a police officer after the inmate was arrested for assault and transported to Florida. While the Florida questioning arguably concerned the same crimes, the FBI discontinued questioning when the right was invoked, and the inmate was re-advised of his rights before the Florida questioning began seven days later. Nothing explained why the officer would have questioned the inmate for seven hours after he allegedly refused to waive his rights. There was no request for counsel. Being represented by counsel on the probation violations or on the unrelated assault did not automatically assert the right as to all police questioning. The Sixth Amendment right to counsel was offense-specific and the questioning took place more than a year prior to the murder charges being filed. While a court order had authorized counsel access to the inmate at jail, the inmate was at police headquarters, and it still did not trigger the right to counsel for the murder charges, filed year later.

OUTCOME: The district court's judgment was affirmed.

TJOFLAT, Circuit Judge:

On March 14, 1990, a jury in the Circuit Court for Columbia County, Florida, found petitioner Mars L. Gore guilty of the murder, kidnapping, and robbery of Susan Roark, and recommended that he be sentenced to death. Three weeks later, the court accepted the jury's recommendation and imposed the death sentence. After exhausting his state remedies, Gore, proceeding under 28 U.S.C. § 2254, petitioned the United States District Court for the Middle District of Florida for a writ of habeas corpus. The court denied his petition. After the district court denied his application for a certificate of appealability, Gore applied to this court for a certificate. We granted his application and issued a certificate of appealability for a single issue: Whether the Florida Supreme Court's decision upholding the trial court's refusal to suppress certain statements Gore made to detectives in the Metro-Dade Police Department infringed his rights under the United States Constitution. The district court, in denying habeas relief, held that the Florida Supreme Court's decision on this issue was neither based on an unreasonable determination of the relevant facts nor contrary to or an unreasonable application of established federal law. Because we agree, we now affirm.

I.
A.

On Saturday, January 30, 1988, Susan Roark told her grandmother, with whom she lived, that she was going to a party thrown by her friend Michelle Trammell at Trammell's trailer home just outside of Cleveland, Tennessee. Roark, a student at nearby Cleveland State University and a close friend of Trammell's, arrived at the party some time between nine and ten in the evening. She was accompanied not by her expected date - who had car troubles - but by a man she had met at the Rocky Top Market in Cleveland on her way to the party. She introduced him to the others at the party as "Tony." A couple hours later, Roark, who planned to spend the night at Trammell's, left the party to drive "Tony" back into Cleveland. Roark had asked Trammell to come with her, but when Trammell fell asleep, Roark decided to take "Tony" back into town on her own. They left the party around midnight in Roark's black 1986 Ford Mustang GT. Roark did not return and was never heard from again.

Roark did not show up for church the next morning, January 31, as she had promised her grandmother she would. When she did not return by Sunday afternoon, her family became concerned. They began trying to track Roark down by calling several of her friends, including Trammell. 1 When these efforts ultimately proved futile, Roark's family reported her missing to the Cleveland police.

1 Trammell initially lied to Ruth Roark, Susan's grandmother, telling her that Susan had spent the night at Trammell's trailer as she had planned. After discussing the matter with her boyfriend, she called Ruth Roark back and apologized. She then explained that Susan had left the party with a man Trammell did not know.

B.

The Cleveland Police Department launched a missing person investigation headed up by Detective Dewey Chastain. Police interviewed Roark's friends and acquaintances and began combing the area of Bradley County near Trammell's trailer. They issued a "BOLO" ("Be on the Lookout") to local law enforcement agencies placing them on notice of the search for Roark, and providing them with information about her and her car. The Mustang's license plate number was entered into the National Crime Information Center ("NCIC") database - ensuring that should the car be stopped by law enforcement anywhere in the country, the car would be flagged when the officer ran the plates through the computer. 2

2 When the Cleveland police entered the Mustang's license plate number into the NCIC, they classified the car as "stolen." Several days later, the Cleveland police decided that it was premature to call the car "stolen" - there was insufficient evidence at the time that Roark had not voluntarily left town with the car - so they withdrew the license plate number from the NCIC database. Around February 10, 1988, the Cleveland police reentered the plate number into the NCIC system as part of a missing person's file. The officer entering the information this second time mis-entered the license plate number. As things turned out, this error would have tragic consequences.

Roark had given Trammell and the other partygoers the address of a house in Cleveland where she was taking "Tony." Trammell passed this information on to Chastain, and, around February 10, he went to the address and interviewed Brenda Gore. Brenda Gore told Chastain that her son, Mars Gore, had recently been in Cleveland visiting her. Mars Gore resided in Miami, and he had been released from federal prison in Florida after serving time for a firearms conviction. She provided Chastain with pictures of her son, and Trammell and the others at her party all positively identified the man in the pictures as "Tony" - the man with whom Roark had left the party.

On February 11, the Cleveland police used the local media to publicly solicit information regarding Roark's disappearance. They asked that anyone with any knowledge of Roark's whereabouts come forward. The solicitations indicated that there was a prime suspect in the disappearance, but stopped short of giving Mars Gore's name.
Early in the morning on Sunday, February 14, 1988, a black Ford Mustang GT collided with another car in Miami, Florida. The Mustang's driver fled the scene on foot, and the Miami police department had the car towed to an impound lot. The registration in the glove compartment identified the owner as Harold Roark - Susan Roark's father. A traffic citation found inside the car had been issued to a Marshall Lee Gore. 3

3 The citation had been issued in Dade County on February 11, 1988.

The discovery of the Mustang in South Florida indicated that, if Roark been abducted, it was likely that she was transported across state lines. As such, the Federal Bureau of Investigation ("FBI" or "the Bureau") opened a potential kidnapping file 4 and joined the investigation into Roark's disappearance. While agents in Tennessee assisted the Cleveland Police in their search for any sign of Roark, agents in South Florida were alerted to be on the lookout for Mars Gore. In early March, after receiving a call from the Knoxville, Tennessee office of the FBI, Agent James Barrow of the Bureau's Tampa, Florida office, began investigating a possible connection between Gore and a University of Tampa student, Susan Brown. Brown had attended high school in Miami with Mars Gore, and the two had dated for a time. Barrow interviewed Brown and learned from her: that Gore had stayed with her in Tampa in January, prior to traveling on to Cleveland, Tennessee, to visit his mother; that Gore had visited her, unexpectedly, in Tampa on January 31, 1988, the day after Roark's disappearance; that Gore had arrived driving a black Ford Mustang; and that, together, Brown and Gore had pawned at several different pawn shops some items of jewelry Gore had in his possession. Agent Barrow visited the pawn shops described by Brown and recovered the jewelry. On March 11, Barrow learned from Brown that Gore was staying in the Miami area with a friend of Brown's named Rosa Lastinger.

4 A kidnapping that affects interstate commerce is a federal crime under 18 U.S.C. § 1201(a)(1).

Meanwhile, the U.S. Marshals Service was also searching for Mars Gore. 5 On March 12, 1988, a deputy U.S. Marshal visited Gore's father's construction site in Miami and asked to speak to Gore. Gore was serving a five-year term of probation handed down by the U.S. District Court for the Southern District of Florida for having been convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 924(a). 6 The district court had issued a warrant for Gore's arrest on February 24, 1988 for violating the conditions of his probation. 7 Gore had given his probation officer his father's construction site as his place of employment, but when the deputy arrived, Gore was not there.

5 There is no indication in the record that the U.S. Marshals Service and the FBI were working in concert to locate Gore.
6 Gore pled guilty to that offense and was sentenced to probation on January 8, 1987. United States v. Gore, Case No. 85-8037. On the same day, in the same case, he pled guilty to making a false statement to a firearms dealer, in violation of 18 U.S.C. § 922(a), and was sentenced to a prison term of a year and a day. The term of probation commenced to run on Gore's release from prison.
7 The warrant is not part of the record before the district court, which includes the record of all of the state court proceedings. At Gore's trial, no one testified to the probation condition(s) that Gore allegedly violated. On March 24, 1988, Gore appeared before a federal magistrate judge in Miami at a hearing on the probation violation charge. Gore submitted a transcript of this hearing as an exhibit to the reply brief he filed in the instant appeal. This transcript was not part of the record before the district court. The transcript indicates that the probation violation warrant was "essentially predicated on a failure to report."

On March 14, 1988, a woman named Tina Corolis was assaulted, knocked unconscious, and left for dead in a wooded area in Dade County, Florida. Despite being seriously injured, Corolis survived the assault and was able to get to a phone and call for help. Her assailant absconded with her car and Corolis's toddler son, who had been in the back seat of the car, was nowhere to be found. Within twenty-four hours of the assault, Metro-Dade police had identified a prime suspect: Mars Gore. 8 Metro-Dade police joined the already on-going coordinated effort by the FBI and the Cleveland, Tennessee police to locate Gore.

8 Prior to Gore's trial for Roark's murder, Detective Louis Passaro of the Sexual Battery Unit of the Metro-Dade Police Department was deposed pursuant to Fla. R. Crim. P. 3.220, which provides for, among other discovery, the taking of "discovery depositions." In his deposition testimony, he described the process of identifying Gore as the suspect in the Corolis assault. Passaro met and briefly interviewed Corolis about the assault at Jackson Memorial Hospital to which she had been air-lifted. Corolis told Passaro that she knew her assailant only as "Tony." She gave Passaro a description of Tony and told the Detective that Tony had recently been released from prison. Because Corolis told him that Tony had mentioned living in a local federal half-way house, Passaro called several such houses in the area. An employee at one of the houses informed him that the man he was looking for matched the description of a former resident - Mars Gore - and that both the FBI and the U.S. Marshals Service were also looking for Gore, the former in connection with a potential kidnapping and the latter in connection with a probation violation. Passaro obtained a picture of Gore and showed it to Corolis. She was heavily sedated, having just undergone emergency surgery, and was unable to identify her assailant from a photo array.

In the meantime, someone had returned Corolis's beeper to a service center on the morning of March 15 in return for a reward. The beeper service called Corolis to inform her that her beeper had been found. Passaro learned of this call and went to the service center on the morning on March 16. The manager picked Mars Gore's picture out of a photo array as the man who had returned Corolis's beeper. Later that day, a pawn shop owner in the Miami area also identified Gore as the man who had pawned several items of what was later determined to be Corolis's jewelry.

On March 17, 1988, a specialist in the Miami Police Department crime lab processed the black Ford Mustang GT, which was still being held in an impound lot, and identified latent prints on the driver's side window. These prints were later matched to Gore. The specialist found traces of blood in the car and a number of the items recovered from the car were later identified as belonging to Roark.
On March 17, the same day the Mustang was being processed by the crime lab specialist, L.B. McGuinty, an FBI agent assigned to the Paducah, Kentucky office, was dispatched to interview a local resident, Rex Gore. McGuinty was told that a probation violation warrant had been issued for Rex Gore's nephew, Mars Gore, and that Mars Gore was also a suspect in several federal and state criminal investigations. McGuinty, accompanied by other agents and local law enforcement, went to Rex Gore's home, where they learned from Rex Gore and his wife that Mars Gore had arrived unexpectedly in Kentucky that week and had remained in the area visiting his cousin. The agents proceeded to Gore's cousin's trailer in Ledbetter, Kentucky, where they found Gore alone, executed the warrant for his arrest for probation violation, and took him into custody.

C.

The agents brought Gore to the FBI office in Paducah, Kentucky, where he was read his Miranda rights and signed a waiver of rights form. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d. 694 (1966). Agents McGuinty and Larry Faust then began questioning Gore. At first, Gore spoke freely, giving general background information about himself and admitting that he was on probation in the Southern District of Florida. When the agents questioned Gore concerning how he came to be in Kentucky, though, he invoked his right to remain silent, and the agents immediately discontinued the questioning. 9 After allowing Gore to make several phone calls, the agents transported him to a detention facility in Hopkinsville, Kentucky. 10

9 In invoking his right to silence, Gore did not ask for a lawyer.
10 During the trip to Hopkinsville, Gore made an unsolicited statement to the agents, telling them that they would be famous some day because books would be written about him. Prior to trial, Gore moved the court to suppress the statement. The court denied the motion, and the State introduced the statement into evidence at his trial. The Florida Supreme Court affirmed the trial court's ruling, and the district court found no merit in Gore's challenge to that decision in denying Gore's petition for writ of habeas corpus. While we granted a certificate of appealability to review statements Gore made to the Metro-Dade police, this statement to the FBI agents is not before us.

While Gore was being detained in Hopkinsville, two additional warrants were issued for his arrest: on March 18, a Southern District of Florida magistrate judge issued a warrant for his arrest for kidnapping Corolis's son; and on March 11 22, the Dade County, Florida Circuit Court issued a warrant for his arrest for the assault and attempted murder of Tina Corolis. On March 23, the U.S. Marshals Service and the FBI transported Gore to Miami. 12

11 Corolis's son had been found in an abandoned house in Dade County, Georgia, after neighbors noted suspicious activity around the house and alerted the authorities.
12 The record before the district court, and this court on appeal, contains nothing indicating that the FBI executed the March 18 kidnapping warrant while Gore was in detention in Hopkinsville. Gore appended to his reply brief in this appeal a copy of the transcript of the hearing that was held before a federal magistrate judge in Miami on March 24 on the charge that he had violated the terms of his probation. The transcript indicates that Gore made two appearances before a federal magistrate judge in Kentucky - presumably in Paducah - and that he was represented by counsel at these appearances. One appearance was likely Gore's initial appearance on the charge that he had violated the conditions of his federal probation. Because Gore made a second appearance, we can infer that the FBI executed the March 18 warrant while Gore was being detained and took Gore before a federal magistrate judge for an initial appearance on that charge.

The transcript of the March 24 hearing was not made part of the record below, and thus is not part of the record in this appeal. We therefore do not consider it in disposing of the issue set out in the certificate of appealability.
The record indicates that on the next day, March 24, Gore appeared before a Southern District of Florida magistrate judge. The court was aware that the Dade County Circuit Court had issued a warrant for Gore's arrest for the assault on Tina Corolis and that the Metro-Dade police were standing by to take him into custody. The record before us does not explain the procedure the court thereafter followed. All it tells us is (1) that the probation violation charge was "dropped," (2) that Metro-Dade Detectives Lou Passaro and David Simmons obtained Gore's custody and took Gore to the homicide bureau of the Metro-Dade police headquarters, and (3) that they did so after Gore's court-appointed counsel advised Gore not to talk to the police. 13

13 Though, again, we do not consider it in disposing of the issue set out in the certificate of appealability, the hearing transcript attached to Gore's reply brief assists us in filling in certain lacunae in the record before us. The transcript reveals that the hearing before the magistrate judge was in response to Gore's arrests both on the warrant for probation violation and the warrant for kidnapping, and that, at Gore's request, the court declared him indigent and appointed an assistant Federal Public Defender to represent him. As the hearing progressed, the assistant U.S. Attorney stated that the government would dismiss the kidnapping charge - likely because it formed an integral part of the State's case against Gore for the attempted murder of Corolis's son - and did not object to Gore being turned over to the Metro-Dade police. The transcript also reveals that the assistant public defender asked the court to order the Metro-Dade police not to interrogate Gore. Counsel stated:
Judge . . . we would be requesting that you enter an order. We are requesting that no state, county, city, or federal police officer be permitted to interview Mr. Gore. He is invoking his Fifth Amendment right right now as far as any agency, and we would request that you enter an order to that effect.
The court denied counsel's request. We refer to the transcript here because, as part of Gore's reply brief, it is part of the foundation for Gore's argument that the assistant public defender's instruction that Gore not talk to the police supports his claims that the Metro-Dade police interrogated him in violation of the Fifth, Sixth, and Fourteenth Amendments.

The court's docket sheet for the probation violation charge, which we obtained from the district court clerk's office, indicates that the probation violation charge was not dropped. Instead, the court scheduled a probable cause hearing on that charge for April 4, 1988.

At the Metro-Dade police headquarters, Detective Simmons advised Gore of his Miranda rights and offered him an opportunity to call the Dade County Public Defender's office. Gore declined the opportunity, and Simmons then questioned him for seven hours regarding Roark's disappearance, the assault on Corolis, and the February 14 assault of a third woman, Maria Domingues.
Several hours into the interrogation, Detective Simmons learned that an attorney from the Dade County Public Defender's office was attempting to gain access to Gore. Simmons passed this information on to Gore, and again asked him if he wished to have counsel present. Gore answered in the negative, and Simmons resumed his interrogation. Gore made several statements that were introduced into evidence at his trial, during the State's case-in-chief. These statements are the focus of this appeal.

D.

On April 2, 1988, four members of the Columbia County, Florida Sheriff's Office mounted posse were searching a wooded area near Interstate 75 for an elderly man who had been reported missing. Instead of finding the man, they found the skeletonized remains of a young woman. The woman was naked. Shoe laces were tied around her wrists, indicating that she had been bound. Dental records soon confirmed that the unidentified body was Susan Roark's.

On July 12, 1988, the Columbia County Circuit Court issued a warrant for Gore's arrest for the murder of Susan Roark. 14 On April 25, 1989, a Columbia County grand jury handed down a three-count indictment in the Roark case, charging Gore with first degree murder, kidnapping, and armed robbery. After a Dade County jury found Gore guilty in the Tina Corolis case, the 15 Columbia County Sheriff's Office obtained Gore's custody, and on June 29, 1989, in the Columbia County Circuit Court, he pled not guilty to all three counts of the indictment.

14 At the time, Gore was in custody in Dade County, where the State was pursuing charges stemming from the attempted murder of Tina Corolis and the abduction and attempted murder of her son.
15 Gore was convicted of the charges involving Tina Corolis: attempted murder, kidnapping, sexual battery, burglary, robbery, and theft. He was also convicted of the attempted murder of Corolis's son, but this conviction was reversed on appeal. See Gore v. State, 573 So. 2d 87 (Fla. 3d Dist. Ct. App. 1991).

II.

The Roark case was initially set for trial in September of 1989. The parties invoked the liberal discovery procedures provided by Rule 3.220 of the Florida Rules of Criminal Procedure, and most of the witnesses who would be called to testify by both the State in its case-in-chief and by Gore were deposed. To accommodate Gore's need to depose the State's voluminous list of potential witnesses, the court continued the trial on several occasions. After all discovery was completed, the trial was set for March 5, 1990. Prior to trial, the State, anticipating Gore's objections, informed Gore that, among other things, it planned to introduce the statements Gore gave to Detective Simmons at the Metro-Dade police headquarters. 16 The State also provided Gore with written notice that it intended to introduce evidence that Gore had assaulted several women in the Dade County vicinity during February and March of 1988, namely Brandi Rush, Maria Domingues, and Tina Corolis. 17 Evidence of these assaults, the State theorized, was relevant to establish the identity of Roark's assailant and Gore's intent.

16 The State also informed Gore that it intended to introduce statements Gore made to Columbia County Detective Neal Nydam while he was detained in Columbia County awaiting trial. The State eventually sought to introduce the statements made by Gore to the FBI agents in Kentucky following his arrest on the probation violation warrant.
17 The State was obligated to provide Gore - no fewer than ten days before the trial date - with "a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information." Fla. Stat. § 90.404(2)(c). The written notice listed the women assaulted by Gore as B.R., M.D., and T.C. respectively. By the time of the hearing on Gore's motion to exclude this evidence, the State had apparently abandoned its intention to introduce evidence regarding the assault of Brandi Rush, and instead had provided Gore's counsel with oral notice that it intended to introduce evidence of the assault of a fourth woman, Lisa Ingram.

Prior to the trial, Gore moved to exclude the evidence of the purported assaults, arguing that it was inadmissible under Williams v. State, 110 So. 2d 654 (Fla. 1959), because it served no purpose other than to prove that he was a person of bad character with the propensity to commit the crimes alleged in the indictment. 18 Gore also moved the court in limine to suppress the statements he gave the law enforcement officers on the ground that they were taken in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments. 19

18 The assaults at issue were the February 6 assault of Brandi Rush; the February 14 sexual assault of Maria Domingues, which Domnigues alleged occurred in a black Mustang automobile; the February 20 sexual assault of Lisa Ingram; and the March 14 assault of Tina Corolis. As indicated in the text infra, at trial, the court overruled Gore's objection to this evidence. As the trial progressed, the prosecutor apparently had second thoughts about presenting some of the assaults and limited its proof to the Corolis assault. Lisa Ingram did testify, but not about her sexual assault. Her testimony was brief - about a statement Gore made to her prior to the assault.
19 Gore moved to suppress the statements he made to both Detectives Simmons and Nydam. The motion also sought to suppress any statements obtained by any law enforcement officials in violation of Gore's rights. Thus, the motion encompassed Gore's statement to the FBI in Kentucky, which the State also sought to introduce.

The court deferred ruling on the admissibility of the State's proffers, stating that it would consider the matter at trial, during the State's case-in-chief. It cautioned the State not to refer to the proffered evidence in any way - whether in opening statement to the jury or through the examination of its witnesses.
The court held a hearing on Gore's objections and motion to suppress on the sixth day of the trial, while the jury was in recess. Because the statements Gore made to Detective Simmons of the Metro-Dade Police Department 20 form the basis of the constitutional issues we address in this appeal, we begin with that hearing. We then turn to the evidence presented to the jury, both before and after the court disposed of Gore's challenges.

20 A second Metro-Dade police officer was present during Detective Simmons's interrogation of Gore. The certificate of appealability refers to the questioning conducted by the Metro-Dade "detectives," not the questioning conducted by any individual officer. For the sake of clarity, we discuss the Metro-Dade interrogation with specific reference to Detective Simmons, who conducted the only interrogation relevant to the present appeal.

A.

Gore's in limine motion to suppress alleged that Detective Simmons obtained five statements 21 in violation of Gore's rights under the Fifth, Sixth, and Fourteenth Amendments: (1) Gore claimed he could not recall having ever driven a 1986 black Ford Mustang with a Tennessee license plate; (2) Gore denied having ever met Susan Roark; (3) Gore denied having ever met Tina Corolis; (4) Gore denied that he had ever driven a 1987 red Toyota Corolla; and (5) Gore denied having ever been to a pawn shop where some of Tina Corolis's jewelry was pawned the day after she was assaulted. 22

21 The five statements set out in the accompanying text appear at first blush to be exculpatory. When considered in the light of the evidence the State presented to the jury, however, the statements were inculpatory.
22 As noted supra, Gore's motion to suppress included the statements he made to FBI Agents McGuinty and Faust and to Detective Neal Nydam of the Columbia County Sheriff's Office. The court denied Gore's challenge to the statements made to the agents, and the Florida Supreme Court affirmed. The supreme court's ruling is not before us in this appeal. The trial court granted Gore's motion to suppress the statements to Detective Nydam, after the State conceded that they were inadmissible.

1.

At the suppression hearing, FBI agents McGuinty and Faust testified that they were aware when they arrested Gore for violating his probation that he was a suspect in ongoing state investigations. They testified that Gore was read his Miranda rights and signed a waiver of rights form, following which he spoke freely, for a time, until the questioning turned to how he arrived in Kentucky. At that point, Gore invoked his right to remain silent. The agents ceased questioning Gore, allowed him to make several phone calls to his father, and then transported him to a federal detention center. Both agents said that Gore did not request a lawyer.

Detective Simmons testified that, following Gore's appearance before the federal magistrate judge in Miami on March 24, 1988, the Metro-Dade police arrested Gore for the assault on Tina Corolis and took him into custody. 23 Gore was then transported to Metro-Dade police headquarters, where he was read his rights. He refused to sign an advice-of-rights form. Prior to questioning Gore, Simmons was aware that the magistrate judge had appointed an attorney to represent Gore regarding the probation violation charge; that the attorney had advised Gore not to answer any questions; and that Gore had invoked his right to remain silent when questioned by the FBI in Kentucky. Simmons said that Gore indicated that, despite the attorney's advice, he was willing to talk, because he had nothing to hide. Simmons then offered Gore the opportunity to speak to someone in the Dade County Public Defender's office. Gore declined the offer.

23 As noted supra, the Dade County Circuit Court had issued a warrant two days earlier for Gore's arrest for crimes committed during the Corolis assault.

Simmons interrogated Gore for approximately seven hours, eliciting, among others, the five statements we have listed. Simmons said that around nine that evening - six hours into the interrogation and after Gore had made the statements - Simmons was made aware that an attorney with the Dade County Public Defender's office had been asking to speak to Gore. Simmons again offered Gore an opportunity to speak to a lawyer, and again Gore declined.

2.

In support of the motion to suppress, Gore's counsel called Judy Alves, the assistant public defender who had asked to speak to Gore. Alves was a member of the Public Defender's major crimes division. She testified that after learning of Gore's arrest on March 24, from several news outlets, she went to the Dade County jail and asked to be admitted to see Gore. She was informed that he was not at the jail.
Alves then went before a Dade County circuit judge and obtained an order directing the Dade County jail to allow her access to Gore. 24 Alves returned to the jail and was again told that Gore was not there. She then proceeded to the Metro-Dade police headquarters and advised a person on duty in the Homicide Division that she had a court order allowing her to see Gore. She was told that Gore was in the building, but she was denied access.

24 We note that, while the order Alves obtained serves as the fulcrum for a great deal of Gore's argument that a writ of habeas corpus should issue - and while the order must have been reduced to writing if it was to be in any way efficacious for Alves when she appeared at the jail - the order was not made a part of the record of the suppression hearing and, thus, is not part of the record now before us. All we have is the testimony of Alves regarding the order and a partial transcript of the subsequent hearing before the circuit judge, during which Alves sought enforcement of the order. Gore introduced this partial transcript into evidence at the hearing on his motion to suppress the statements made to Detective Simmons.
After this, Alves returned to the Dade County circuit judge who had issued the order seeking enforcement of the order. The judge convened a hearing on the matter. An Assistant State Attorney (from the Dade County State Attorney's office) appeared and informed the judge that Gore had not yet been taken to Dade County jail. 25 Accepting the attorney's representation, the judge told Alves that she could see Gore once he was taken to the jail. Alves, instead, returned to Metro-Dade police headquarters and demanded to see Gore. She met with no success.

25 The partial transcript of the hearing reveals that the Assistant State Attorney also represented that while Gore had been taken into state custody, he had not yet been taken to either the Dade County Jail or the Metro-Dade police headquarters. This statement cannot be squared with the testimony of all the witnesses who testified as to the time line of Gore's custody on that day. All the witnesses agreed that at the time Alves first sought access to Gore at the Metro-Dade police headquarters, Gore was in the building being interrogated.

In addition to calling Alves in support of his motion to suppress, Gore also called Detective Lou Passaro, the lead investigator in the Tina Corolis case. Passaro testified that, prior to Gore being transferred to state custody on March 24, the FBI informed him that Gore had aborted the agents' interrogation in Kentucky by refusing to answer further questions.
Finally, Gore himself testified. Gore said that he never waived his rights while being interrogated by Detective Simmons. His response to every question Simmons posed was "I want an attorney, I want a phone, and I want to go to the bathroom." He did not dispute that, despite this refusal to answer questions, the session lasted in excess of seven hours. 26

26 On cross-examination, Gore insisted that the questioning lasted even longer - until one in the morning. Earlier during the suppression hearing, Detective Simmons had testified that the session ended around eleven at night and that, at Gore's request, the police had waited until after the evening news ended to transport him to the jail - thereby denying the reporters waiting outside the jail an opportunity to film Gore.
At the conclusion of the hearing, the court denied Gore's motion to suppress the statements made to Simmons.

B.

As previously noted, Gore's trial began on March 5, 1990. The State opened its case-in-chief with testimony about the discovery of Roark's body and the investigation by the Columbia County Sheriff's Office and the Florida Department of Law Enforcement ("FDLE") into Roark's identity and likely cause of death. The State then presented evidence of Roark's disappearance, Gore's flight from Tennessee to Tampa and on to Miami, the assault on Corolis and the flight from Miami to Kentucky, and, finally, the arrest and law enforcement interrogation.

1.

Members of the Columbia County Sheriff's Office mounted posse, who had discovered Roark's body, testified that they found the body while searching a wooded area not far from Interstate 75 for signs of a missing Columbia County man, Leroy Mills. After finding Roark's largely decomposed naked body, just off an access road next to a trash heap, the posse contacted the Sheriff's Department.
Sergeant Randal Roberts, who responded to the initial call from the mounted posse, and Detective Neal Nydam, the chief investigator, described the scene where the body was found. A shoelace tied around Roark's left wrist led them to conclude that Roark had been bound and to classify the case as a probable homicide. Several strands of hair were found in Roark's hand. Beer bottles and an empty cigarette pack were found near the body as were a torn t-shirt, a pair of women's underwear and a ripped panty shield. When the body was moved a pair of earrings were found underneath. A search for fingerprints failed to come up with even a single usable latent print.

Following the identification by medical experts of the likely gender and approximate age of the deceased, Detective Nydam sent out a national teletype with a description of the victim. The Cleveland Police Department saw the teletype, contacted Nydam, and sent him a copy of Susan Roark's dental records. Roark's dentist, Vernon Bryant, testified that the dental records confirmed that the body found in Columbia County was Susan Roark's.
Next, the State presented testimony and evidence concerning the examination of the body by the State's medical experts. FDLE serologist Sue Livingston testified that while the body's tissue had so deteriorated that blood analysis was impossible, there were indications that there was blood on the shoulders of the shirt found near the body.

Forensic anthropologist William Maples testified that the extreme decomposition of the left breast indicated that there may have been an injury to that area, making it the easiest target for insects and other catalysts of decomposition. Also a small nick in the bone at the base of the skull was most likely the result of a knife wound to that area. Maples estimated that, given the level of decomposition, the body could have been in the Columbia County woods anywhere from two weeks to six months before it was discovered, but that a two to four month range was the most likely scenario.
Deputy Chief Medical Examiner Bonifacio Floro testified that the string found on the wrist had been tied sufficiently tightly prior to death to leave a mark. Floro opined that the likely cause of death was homicidal violence. 27 Floro stated that the decomposition of the neck was consistent with strangulation or a neck injury, and that this was the likely cause of death. Floro opined that Roark was probably placed where she was found within a half an hour of her death and that she likely died around two months before her body was discovered.

27 Floro's opinion was based in part on Roark's medical record, which showed no history of acute or chronic illness, and on the absence of evidence of a substance abuse problem. In light of these factors, Floro concluded that death by natural causes - such as a heart attack or an aneurysm - was extremely unlikely. Floro cited the facts that Roark's wrists were bound and that the body had been found naked in the woods in opining that other explanations for the death, such as suicide or accident, were unlikely. Having thus excluded all other potential causes of death, Floro said that homicide was the most likely cause.
All the State's medical experts conceded that there was no physical evidence linking Gore to Roark's death. Indeed, it was impossible to conclude definitively that Roark did not die from some cause other than homicide.

After presenting the testimony of these expert witnesses, the State proffered a chronology of Roark's final day, followed by an accounting of Gore's activities during his flight from Tennessee, and ending with his apprehension by the FBI in Kentucky. Nathan Caywood and Jimmy Doyle Stafford testified that they had met Gore at the Cleveland Mall in the weeks leading up to Roark's disappearance. Gore had prevailed upon Caywood to drive with him to Panama City, Florida, for what Gore described as a lucrative business deal. After initially resisting Gore's entreaties, Caywood had agreed to accompany Gore. The pair made plans to meet at the Rocky Top Market on the evening of January 30, 1988. Gore did not know where the market was, so Caywood had Stafford take him there. While Gore and Stafford were waiting for Caywood, Gore struck up a conversation with a young female customer, whom Stafford recognized as Susan Roark. 28 Soon thereafter, the Gore and Roark drove off in Roark's black Ford Mustang GT. Caywood testified that when he arrived at the market to meet Gore, Gore was not there. Caywood did not hear from Gore again, and they never took their planned trip to Florida.

28 Another witness, Paul Eumiker, testified to having seen Susan Roark at the market that evening.

Michelle Trammell testified that she was hosting a small party that night at her trailer just outside of Cleveland. She and several other party attendees testified that Roark arrived at the party some time between nine and ten o'clock with a man she introduced as "Tony," but whom they all were able to identify at trial as the defendant, Mars Gore. Gore shot darts and drank beer with the men, while Roark and Trammell went out for a bit. About two hours after arriving at the party, Roark told Trammell that she was going to drive Gore to a particular address in Cleveland and then return to Trammell's trailer, where she planned to spend the night. Gore and Roark left the party together around midnight.
The State called Roark's grandmother, Ruth Roark, who testified regarding her grand-daughter's failure to come home at the promised time on January 31st, and the family's initial attempts to locate her through calling her friends. When they were unable to locate Roark they reported her disappearance to the police. Detective Dewey Chastain then testified as to the initial efforts of the Cleveland police to locate Roark.

Gore's former girlfriend Susan Brown testified that the next day, January 31, 1988, Gore appeared unexpectedly at the Domino's Pizza franchise in Tampa, Florida, where she worked. Gore arrived alone, driving a black Ford Mustang. Gore told Brown that he had driven all night from Tennessee to Tampa 29 and that the Mustang was a gift from his mother. Brown informed Gore that he would have to get a hotel room because he could not stay with her. 30 In response, Gore asked Brown for help pawning some jewelry so he could pay for the room. 31 Over the course of two days, they visited numerous pawn shops in Tampa and pawned several items of jewelry. 32 Much of this jewelry was identified at trial to be Roark's. 33 When Brown inquired how Gore came to be in the possession of the jewelry, he responded that it belonged to a girlfriend of his. On February 1, Gore failed to keep an appointment to meet Brown at a diner, and she did not see him again. 34

29 Later in the trial, the State established that Interstate 75, the major highway near which Roark's body was found, was the most direct route from Cleveland, Tennessee to Tampa, Florida. The highway proceeds on to Miami, and the State established that Interstate 75 was the route taken by Gore when he eventually left Tampa for Miami.
30 Brown testified that she had attended high school in Miami with Gore and she now was a student at the University of Tampa. About a month earlier, Gore had stayed with her in her dorm room on his way from Miami to Cleveland, Tennessee, to visit his mother.
31 Gore told Brown that he had lost his license, and that because identification is required to pawn an item, he would need someone to go with him. Brown agreed to do so.
32 The State followed Brown's testimony by presenting the testimony of a succession of pawn shop employees verifying that Gore and Brown had sold them the jewelry, and the testimony of FBI Agent James Barrow, who later seized the jewelry. Brown also testified that one of the rings Gore attempted to pawn bore Roark's initials and that the pawn shop refused to accept the ring, a class ring, because the initials engraved in the ring did not match Brown's initials.
33 Trammell was able to identify several of the items of jewelry, as was Carolyn Roark, Susan's step-mother.
34 Later in the trial, the State corroborated Brown's testimony that Gore was in Tampa on February 1 by presenting Gore's mother, Brenda Gore, to establish the authenticity of her phone bill. The bill showed that she had received a collect call from a Tampa pay phone on February 1. The State also called Tampa Sheriff's deputy John Blanchard who testified that he had located the payphone with the numbers found on Brenda Gore's bill. The phone was in a lounge located across the street from the Domino's Pizza where Susan Brown worked.

Rosa Lastinger was a friend of Brown's whom Brown had introduced to Gore while Brown was home in Miami for the 1987-1988 Christmas-New Years holiday season. Lastinger testified that, on February 4, 1988, 35 she received a call from her employer, a car dealership in Miami, informing her that a man named Tony was at the dealership asking to see her. When the man was put on the phone, Lastinger recognized "Tony" as Brown's friend Mars Gore. Gore told Lastinger he wanted to trade in a car, and Lastinger made an appointment to meet him at the dealership. After they met there, Gore began filling in the paperwork for trading in a black Ford Mustang GT, but he was unable to complete the transaction because he did not have the car's title and registration. He explained to Lastinger that this paperwork was at his father's house, and that he was unable to retrieve it because he and his father were on the outs. When Gore informed Lastinger that he did not have a place to stay in Miami, Lastinger invited Gore to stay at her home, and Gore accepted. 36

35 The State's only evidence to account for Gore's whereabouts from February 1, when Brown last saw Gore, to February 4, when he moved in with Lastinger, was the testimony of Sergeant John D. Ross of the Florida Highway Patrol. Ross testified that at 10:32 a.m. on February 2, he stopped a black Ford Mustang GT that was southbound on Interstate 75, just outside of Punta Gorda. He stopped the car for speeding, and issued a traffic citation to the driver, whose license identified him as Marshall Gore. The Cleveland police had not yet entered information about Roark's car into the NCIC database at the time of the stop. Later, the car was determined to be Roark's.
36 The jury learned that at the time Gore moved into Lastinger's home, others, in addition to Lastinger, occupied the residence. Among them were Marisol Coto and Coto's 13-year old daughter, Jessie Cassanova.

In the early morning hours of February 14, 1988, Gore called Lastinger and told her that he had been in an accident while driving the black Ford Mustang GT. He asked her to pick him up. When she did so, Gore was on foot and the Mustang was nowhere to be seen.
Manuel Garcia-Lineres, a Miami physician, testified that he was in an accident with a black Ford Mustang GT early in the morning of February 14, and that the driver of the other car apparently fled the scene of the accident on foot. The State followed Garcia-Lineres's testimony with that of the Miami police officer who came to the scene, the independent contractor who towed the abandoned Mustang to an impound lot, the detective who investigated case, and several crime lab technicians who examined the car and the items found within it. This testimony established that a speeding ticket bearing Gore's name and several items later identified as belonging to Susan Roark were inside the car. 37 A latent print on the inside driver's side window matched Gore's and several items in the car tested positive for blood. 38

37 See note 3, supra. Gore, driving the black Mustang, had been pulled over and cited for speeding on February 11. Lastinger was with him in the car. Officer Mildred Padrone of the Miami Police Department, who initially pursued a speeding Gore, testified for the State. The day before Gore received the citation, the Cleveland police had re-entered the Mustang's tag number into the NCIC database in connection with a missing person's file. The tag number was entered incorrectly, so running the Mustang's tag number through the NCIC database as part of the traffic stop would have turned up nothing. The entry error was not discovered until after the car had been impounded and the Miami Police Department identified the owner.
38 The State introduced other evidence linking Gore to Roark's Mustang. During the six weeks Gore lived with Rosa Lastinger, he had given Jessie Cassanova several gifts. Many of these gifts were used by the State to link Gore to the murder of Roark. Through the testimony of Jessie Cassanova and FBI Agents Carl Lowery and Weldon Keating, the State established that a key given by Gore to Cassanova as a gift was the key to Roark's Mustang. Gore had also taken a box of cassette tapes from the car and given the tapes to Cassanova as a gift.

Lastinger testified that she received a call from Susan Brown on March 13. Brown told her that an FBI agent had contacted her about Gore and that she informed the agent that Gore was living with Lastinger in Miami. 39 Lastinger passed this information on to Gore and asked him to move out of her house. He did so. 40

39 It is not clear from the testimony of Brown and Lastinger how Brown came to know that Gore had returned to Miami and moved in with Lastinger.
40 Very little evidence was presented to the jury to account for Gore's whereabouts and activities during the period between February 4, when Gore moved in with Lastinger, and March 13, when he moved out. The testimony presented at the suppression hearing indicated that on February 14 - the day Gore and Garcia-Lineres were involved in an auto accident and he abandoned the Mustang - Gore allegedly sexually assaulted and slashed the throat of Maria Domingues, and that on February 20, he allegedly assaulted Lisa Ingram. Ingram described this assault during her testimony at the suppression hearing, but in testifying before the jury, she was not asked about the incident. Ingram's testimony before the jury was brief; accordingly, we do not recount it in the text. On March 12, the day before Lastinger asked Gore to move out of her house, he murdered Robyn Novick. Her body was found near Lastinger's home four days later, on March 16. Several years after the Roark trial ended, Gore was convicted and sentenced to death for the murder and armed robbery of Robyn Novick. Gore v. State, 784 So. 2d 418 (Fla. 2001) (affirming convictions and death sentence on retrial after an initial conviction had been reversed and remanded by Gore v. State, 719 So. 2d 1197 (Fla. 1998)). The State made no attempt to use the Novick assault for the purpose of establishing the identity of Roark's assailant; hence, the jury did not learn of her assault and murder. On March 14, the day after he left the Lastinger residence, Gore assaulted Tina Corolis.

Tina Corolis testified that Gore - an acquaintance with whom she had previously gone on one date - telephoned her on March 14, 1988. Gore told her that his car had broken down, and he asked Corolis for a ride to another car. Corolis arrived in her brand-new red Toyota Corolla. Her toddler son was in a car seat in the back. Gore and Corolis spent the next several hours driving around Miami looking for Gore's replacement car. At one point during the search, Gore asked Corolis to pull over so that he could relieve himself. When he returned to the car, he brandished a knife and ordered Corolis to move over to the passenger seat. Gore then got behind the wheel, and drove to a wooded area where he raped her, strangled her, and punched her face. She lost consciousness, and Gore left her for dead. When she regained consciousness, Gore was gone, as was her car and her son. 41

41 Gore insisted, against the advice of counsel, on personally conducting the cross-examination of Tina Corolis. He focused on Corolis's credibility, implying that, as an exotic dancer, she was skilled at the art of deception.
The State established that soon after assaulting Corolis, Gore stopped at a pawn shop in Miami where he pawned some of her jewelry. Gore's fingerprint was found on the pawn shop receipt. The person Gore dealt with identified Gore.
The State called Rex Gore, Gore's uncle, and Rex Gore's wife, Ashley, to testify. They stated that Gore had arrived unexpectedly at their home in Ledbetter, Kentucky, on March 15, 1988. Gore was driving a red Toyota Corolla.

Finally, the State called FBI agents L.B. McGuinty and Larry Faust, and Detective Simmons of the Metro-Dade Police Department. Through these witnesses, the State went over the details of Gore's apprehension by the FBI on March 17 in Ledbetter, his interrogation by the FBI that day in Paducah, his transfer to the custody of the Metro-Dade police on March 24 in Miami, and his interrogation by Detective Simmons. This testimony tracked closely the testimony given by these witnesses during the suppression hearing which we have summarized. For the sake of concision, we do not repeat it at length here. Of particular importance to the issue presented in this appeal, McGuinty, Faust, and Simmons established that: the FBI advised Gore of his Miranda rights prior to interrogating him on March 17; Gore cut off the questioning by invoking his right to remain silent; Gore did not request to see a lawyer; on March 24, after the federal magistrate judge appointed an attorney to defend him against the charge that he had violated the conditions of his probation and the attorney advised him not to speak to the police without counsel present, Gore was transferred to the custody of the Metro-Dade police; Gore was, again, advised of his rights by Detective Simmons and given an opportunity to call a lawyer; Gore refused the lawyer and indicated he was willing to speak with Simmons; and during the subsequent questioning, Gore made statements the admission of which are the heart of this appeal.
Following the presentation of the testimony of these law enforcement officials, the State rested. Gore moved for a judgment of acquittal on all three counts of the indictment. The court denied his motion.

2.

In his defense, Gore called several of the police officers who had investigated Roark's disappearance and the area where Roark's body was discovered. Through these witness, defense counsel highlighted the paucity - or, indeed, the total absence - of physical evidence linking Gore to Roark's murder. Additionally, counsel implied that Roark had been killed by someone else by calling Linda Hensey from the FDLE crime lab. Hensey testified that the hair found in Roark's hand was not Gore's and that she was never asked to test that hair against the hair of any other suspect.
Gore introduced into evidence the pre-trial depositions of two potential alibi witnesses, who were unavailable to testify: Michelle Gore and Stephanie Refner. 42 Michelle Gore, Gore's sister, testified that Gore had disappeared from Miami just before Christmas 1987, and that he had returned to Miami driving a black Ford Mustang with out-of-state plates some weeks later. She believed that she first saw him driving the car prior to the date of Roark's disappearance. She also said that some of her jewelry, roughly matching the description of the jewelry Gore had pawned, was missing.

42 Gore was unable to locate Michelle Gore. Stephanie Refner was unable to travel to court for medical reasons.
Stephanie Refner, a resident of Cleveland, Tennessee, testified that, after seeing a story about Roark's disappearance in the local newspaper, she called Dewey Chastain of the Cleveland Police Department. She told Chastain that she had seen Susan Roark driving in Cleveland after the date of Roark's disappearance. 43 After introducing these depositions, the defense rested.

43 Gore also called Chastain as a witness. He corroborated Refner's deposition testimony.
In rebuttal, the State called two witnesses to counteract Refner's testimony: Cleveland resident Randal Giles and Susan Roark's father, Harold Roark. They testified regarding the extent of the search for Roark following her disappearance and to the number of times they themselves had seen black Mustangs in the Cleveland area and mistakenly believed that the cars might be Susan's.

3.

After the State presented its rebuttal evidence, Gore once again moved for a judgment of acquittal and was again denied. Following closing arguments, the case was submitted to the jury. On March 14, 1990, the jury returned a guilty verdict on all three counts of the indictment. Because Gore was convicted of a capital offense, 44 the trial as to that offense proceeded to a penalty phase. 45 The jury voted to impose the death penalty by a vote of eleven to one. On April 3, the court accepted the jury's recommendation, and imposed a sentence of death by electrocution. 46

44 Under Fla. Stat. § 782.04, premeditated murder is a capital offense.
45 Fla. Stat. § 782.04, provides that the processes of Fla. Stat. § 921.141 shall apply when the State seeks the ultimate penalty. Under Fla. Stat. § 921.141, after a conviction for a capital offense, the case proceeds to the penalty phase at which evidence of aggravating and mitigating factors is presented and the jury, after balancing these factors, decides whether to recommend the death sentence. The State presented evidence of four of the aggravating factors enumerated in § 921.141: that Gore had a prior conviction for a violent offense, that the murder took place during a kidnapping, that the crime was committed for financial gain, and that the murder was cold, calculated, and premeditated. In mitigation, through the testimony of his mother, Gore presented evidence of a troubled childhood.
46 The trial court found that the State had proven four statutory aggravating factors beyond a reasonable doubt and that these factors outweighed Gore's mitigation evidence. Gore was sentenced to prison for life for the kidnapping conviction and for 15 years for the armed robbery conviction.

C.

Gore appealed his convictions and death sentence to the Florida Supreme Court. He asserted numerous grounds for reversal, including the circuit court's failure to suppress the statements made to Detective Simmons. On April 16, 1992, the court affirmed Gore's convictions and death sentence, 47 holding, among other things, that the admission of Gore's statements to Detective Simmons did not violate Gore's constitutional rights. Gore v. State, 599 So. 2d 978 (Fla. 1992). On November 30, 1992, the United States Supreme Court brought an end to Gore's direct appeal when it denied his petition for certiorari. Gore v. Florida, 506 U.S. 1003, 113 S. Ct. 610, 121 L. Ed. 2d 545 (1992).

47 The Florida Supreme Court did, however, reverse one of the jury's penalty phase findings regarding aggravating factors. The court held that the evidence did not support a finding that the murder had been committed in a cold, calculated, and premeditated manner. The court held that this error was harmless.

48 In affirming the circuit court's decision, the supreme court also denied Gore's petition for a writ of habeas corpus, which presented eight claims in addition to those alleged in his Rule 3.850 motion .

His state court remedies exhausted, on September 3, 2003, Gore filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Middle District of Florida. He amended the petition on April 22, 2005. The amended petition asserted twelve grounds for relief, among which was a claim that the trial court's failure to suppress the statements Gore made to Detective Simmons violated his right to counsel under the Fifth, Sixth, and Fourteenth Amendments.
On January 31, 2006, the district court denied Gore's request for an evidentiary hearing and his petition for writ of habeas corpus. Gore moved this court for a certificate of appealability on March 28, 49 and on April 27, we granted his motion with respect to the single issue before us now - the Florida Supreme Court's decision that the admission at trial of Gore's statements to Metro-Dade Detective Simmons did not violate Gore's rights under the Fifth, Sixth, and Fourteenth Amendments. We turn to that issue now.

49 Gore had applied to the district court for a certificate of appealability on March 1, 2006. The court denied his application.

III.

Gore filed his petition under 128 U.S.C. § 2254, which authorizes this court to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Our review, however, is not plenary; where, as here, there is a determination by the state court on the merits of the claim, our review is constrained by § 2254(d), which provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). This more deferential standard of review of state court judgments was put in place by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996); see Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001).

Gore argues that the Florida Supreme Court's rejection of his claim that the statements he gave Detective Simmons should have been suppressed was erroneous both in its legal conclusions and its factual determinations. AEDPA sets forth separate standards of review depending on whether we are reviewing a conclusion of law or a determination of fact. We discuss each standard in turn.

A.

In reviewing a state court's conclusions of law, we look to 28 U.S.C. § 2254(d)(1), which makes clear that we may only issue a writ of habeas corpus when a state court decision "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" § 2254(d)(1).

The two conditions set forth in § 2254(d)(1) - the "contrary to" and "unreasonable application" clauses - present "independent statutory modes of analysis." Alderman v. Terry, 468 F.3d 775, 791 (11th Cir. 2006) (citing Williams v. Taylor, 529 U.S. 362, 405-07, 120 S. Ct. 1495, 1519-20, 146 L. Ed. 2d 389 (2000) (O'Connor J., for the majority)). A state court decision is "contrary to" established federal law if it "applies a rule that contradicts the governing law set forth [by the Supreme Court]." Williams, 529 U.S. at 405, 120 S. Ct. at 1519 (O'Connor, J., for the majority). In other words, a state court's decision is "contrary to" federal law - an issuance of a writ of habeas is appropriate - if the decision applies a legal principle "substantially different from the relevant precedent of [the Supreme Court]." 50 Id.

50 The Williams Court noted two examples of decisions that would satisfy the "contrary to" standard: where the state court applies a rule that contradicts the governing law and where the state court is confronted by a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result. Id. at 405-06, 120 S. Ct. at 1519-20.

Where the state court correctly identifies the governing precedent, that court's decision cannot be said to be "contrary to" federal law. Id. at 406, 120 S. Ct. at 1520 ("[A] run-of-the-mill state-court decision applying the correct legal rule from our cases to the facts of a prisoner's case would not fit comfortably within § 2254(d)(1)'s 'contrary to' clause."). That said, identifying the correct legal standard does not wholly insulate a decision from habeas review. In such cases, we apply § 2254(d)(1)'s second clause and the inquiry becomes "whether the state court's application of clearly established law was objectively unreasonable." Id. at 409. A decision may be "objectively unreasonable" if it "unreasonably extends or unreasonably fails to extend a clearly established legal principle to a new context." Dingle v. Sec'y for Dep't of Corr., 480 F.3d 1092, 1098 (11th Cir. 2007) (citing Williams, 529 U.S. at 407, 120 S. Ct. at 1520 (O'Connor, J., for the majority)).

The "established federal law" which we look to in conducting both the "contrary to" and "unreasonable application" analysis is not embodied in the decisions of the lower federal courts. Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). Section 2254(d)(1) explicitly establishes Supreme Court precedent as the vel non of "clearly established federal law." § 2254(d)(1). Our basis for comparison, therefore, is the holdings - not the dicta - of Supreme Court decisions at the time the Florida Supreme Court issued its opinion. See Williams, 529 U.S. at 412, 120 S. Ct. at 1523 (O'Connor, J., for the majority).

B.

We review a state court's factual determination under the standard of 28 U.S.C. § 2254(d)(2). As such, we may not issue the writ unless the Florida Supreme Court's decision was based on "an unreasonable determination of the facts in light of the evidence [with which the court was] presented[.]" 28 U.S.C. § 2254(d)(2). In addition to § 2254(d)(2), 28 U.S.C. § 2254(e)(1) provides:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254(e)(1). 51

51 No court has fully explored the interaction of § 2254(d)(2)'s "unreasonableness" standard and § 2254(e)(1)'s "clear and convincing evidence" standard. Since Gore fails to satisfy even the less stringent of these two standards, we need not address how they interact. See Alderman v. Terry, 468 F.3d 775, 791 n.24 (11th Cir. 2006).

We now turn to the merits of Gore's claim. In a pre-trial motion in limine, Gore sought to suppress five statements he made to Detective Simmons of the Metro-Dade police. Gore contended that the admission of these statements would violate his rights under the Fifth, Sixth, and Fourteenth Amendments. Following an evidentiary hearing, the trial court denied his motion. 52

52 In denying Gore's motion, the court made no explicit findings of fact. It is obvious to us, however, that the court, in rejecting Gore's version of the events and accepting what Simmons had to say, implicitly found that Gore's testimony was not credible and that Simmons credibly related the circumstances surrounding Gore's interrogation.

In his direct appeal to the Florida Supreme Court, Gore dropped his Sixth Amendment claim, arguing only that the admission of the statements to Simmons violated his rights under the Fifth Amendment. 53 Gore contended that the admission of these statements violated two distinct Fifth Amendment rights: his right to remain silent, and his right to counsel. 54 Gore argued that the statements were taken in violation of his right to remain silent because Detective Simmons failed to honor Gore's invocation of this right during his March 17 interrogation by the FBI in Kentucky. Gore maintained that the statements were taken in violation of his right to counsel, because, though he never specifically invoked his right to interact with police only through counsel, the appointment of a federal public defender as his attorney at the March 24 hearing on his federal probation violation warrant was a constructive invocation of his right to counsel for all proceedings.

53 Gore has never presented a distinct Fourteenth Amendment claim for relief. He invoked the Fourteenth Amendment as a basis for his claims simply because it is through the Fourteenth Amendment that the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel apply to criminal defendants in state court. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932).
54 Both of these rights are concomitants to the Fifth Amendment privilege against compelled self-incrimination. We discuss the provenance of these rights in greater detail infra.

The Florida Supreme Court found Gore's arguments unavailing. First, the court held that although Gore had invoked his right to remain silent during his FBI interview, that invocation did not prevent all further questioning, and that the questioning by Detective Simmons was permissible. 55 Gore v. State, 599 So. 2d at 981-82. Next, the court rejected Gore's Fifth Amendment right to counsel argument, holding that there was no evidence in the record to support an argument that he had ever invoked this right and that the appointment of an attorney on one charge - the probation violation - did not amount to the invocation of the right to counsel on other charges. Id. at 982. Finally, despite Gore's apparent abandonment of any Sixth Amendment claim to relief, the court addressed a potential right to counsel claim under that Amendment, holding that, because the Sixth Amendment right to counsel is offense-specific, the appointment of counsel for Gore's federal charges did not preclude questioning conducted in the absence of counsel on unrelated state charges. 56 Id.

55 We endeavor here only to summarize briefly the Florida Supreme Court's holdings. As we consider each of Gore's arguments, we will discuss the relevant Florida Supreme Court holdings in greater detail.
56 None of the prior courts to address Gore's claim that his statements to Detective Simmons should have been suppressed have analyzed whether the admission of those statements was prejudicial to Gore. Mindful that our review here is narrowly circumscribed, we do not engage in such analysis now.

In his petition for writ of habeas corpus, Gore challenges the factual determinations and legal conclusions of each of these holdings. We begin our analysis, in this part, by reviewing Gore's claim that his statements were admitted in violation of his Fifth Amendment right to remain silent. In part V, infra, we discuss Gore's claim that the admission of the statements violated his Fifth Amendment right to counsel. Finally, in part VI, infra, we address Gore's Sixth Amendment claim.

A.

Gore contends that his statements to Detective Simmons were obtained in violation of his rights under the Fifth Amendment to the United States Constitution. The Fifth Amendment prohibits the admission at trial of compelled testimonial self-incriminating statements - inculpatory statements made to law enforcement while in custody - providing, in relevant part that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V. Following the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 467-68, 86 S. Ct. 1602, 1624-25, 16 L. Ed. 2d 694 (1966), the 57 threshold Fifth Amendment admissibility inquiry has been: was the suspect given a warning advising him of the now-familiar four Miranda rights - that the suspect "'has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.'" Dickerson, 530 U.S. at 435, 120 S. Ct. at 2331(quoting Miranda, 384 U.S. at 479, 86 S. Ct. at 1630).

57 It has long been recognized that the critical inquiry in applying this privilege against compelled self-incrimination is whether the inculpatory statements were made voluntarily, see Bram v. United States, 168 U.S. 532, 542-65, 18 S. Ct. 183, 187-95, 42 L. Ed. 568 (1897); cf. Dickerson v. United States, 530 U.S. 428, 432, 120 S. Ct. 2326, 2330-31, 147 L. Ed. 2d 405 (2000) (discussing the history of admitting inculpatory statements), but, prior to Miranda, courts engaged in a fact-intensive voluntariness inquiry, looking to the circumstances surrounding the statements. See Malloy v. Hogan, 378 U.S. 1, 6-7, 84 S. Ct. 1489, 1493, 12 L. Ed. 2d 653 (1964) (noting some factors considered in determining if a confession was coerced); Bram, 168 U.S. at 561-64, 18 S. Ct. at 194-95 (assessing the voluntariness of the accused's statement in light of the circumstances surrounding it). In Miranda, the Supreme Court abandoned this approach, in favor of "concrete constitutional guidelines for law enforcement agencies and courts to follow." Miranda, 384 U.S. at 442, 86 S. Ct. at 1611.

Here, the trial court implicitly determined that the Metro-Dade police followed the warning procedures delineated by Miranda. Gore's argument for the suppression of his statements, therefore, hinges less on Miranda, itself, than on its progeny. Gore submits that because he invoked his right to remain silent during the initial questioning by the FBI, Miranda foreclosed his interrogation by Detective Simmons.

B.

Miranda partially addressed the handling of an invocation of the right to remain silent by a properly-warned suspect, stating:
[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. . . . Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.
Miranda, 384 U.S. at 473-74, 86 S. Ct. at 1627-28. Under Miranda, therefore, all questioning must be immediately discontinued once a suspect indicates a desire to remain silent.

Agents McGuinty and Faust both testified that this is precisely what they did, and Gore presented no evidence to the contrary. Gore's statements to Detective Simmons would, therefore, only be inadmissible if an invocation of the right to remain silent precludes all future law enforcement questioning of a suspect. Miranda was silent on this issue, but the Supreme Court addressed it in Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), concluding "that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" Id. at 104, 96 S. Ct. at 326.
Despite Miranda's stated preference for concrete guidelines, Miranda, 384 U.S. at 442, 86 S. Ct. 1611, the "scrupulously honored" standard articulated in Mosley has decidedly uncertain contours - while authorizing the resumption of questioning, it provides no clear guidance on the specific circumstances under which questioning may be resumed. What little guidance Mosley can provide on how to utilize "scrupulously honored" can be divined by looking to the factors the Court considered in determining that the post-invocation resumption of questioning was proper. The Mosley Court looked to four factors. First, the initial interrogation ended immediately once Mosley invoked his right to remain silent. Second, prior to the re-initiation of questioning, a substantial amount of time elapsed. Third, prior to the re-initiation of interrogation, Mosley was again read his rights. And, finally, once the interrogation resumed, Mosley was questioned by a different officer about an unrelated crime. Mosley, 423 U.S. at 104-07, 96 S. Ct. 321 at 327-28.

Similar factors have informed this court's analysis of post-invocation resumption of questioning by law enforcement. See Jacobs v. Singletary, 952 F.2d 1282, 1294-96 (11th Cir. 1992) (excluding certain statements because of repeated short-term re-initiated interrogations, while admitting another statement where suspect initiated the discussion after a seven hour break from interrogation); United States v. Nash, 910 F.2d 749, 752-53 (11th Cir. 1990) (holding post-invocation statements admissible where an hour had passed, the suspect had been re-read his rights, and evidence of who re-initiated discussions was disputed); Jackson v. Dugger, 837 F.2d 1469, 1472 (11th Cir. 1998) (holding a six-hour period of non-interrogation sufficient and noting that repeated reading of the Miranda warnings was not coercive); United States v. Hernandez, 574 F.2d 1362, 1367-70 (5th Cir. 1978) (holding that re-reading of Miranda rights alone did not render the suspect's rights scrupulously honored where police continually resumed questioning after short periods of time and each resumption - prior to the last - was met with an invocation). 58 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. Id. at 1209.

C.

The Florida Supreme Court used a footnote to dispose of Gore's argument that his invocation of the right to remain silent when the FBI had him in custody in Kentucky was fully operative when Metro-Dade Detective Simmons later questioned him in Miami. The court said this:
Gore did exercise his Fifth Amendment right to remain silent while being interrogated by federal officials. However, this did not "create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject." Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313 (1975). The test for determining the voluntariness of statements made after the exercise of the right to remain silent is whether the right to cut off questioning has been "scrupulously honored." Id. at 104, 96 S. Ct. at 326. Gore's rights were so honored here. The FBI immediately stopped the interrogation when Gore said he did not want to answer further questions. Questioning by state officials took place seven days later, after Gore was again informed of his Miranda rights and waived them.
Gore v. State, 599 So. 2d at 981 n.5.

We review Gore's factual challenge first. In concluding that Gore's Fifth Amendment right was scrupulously honored, the Florida Supreme Court, relying on the evidence adduced at the suppression hearing, found the following facts: (1) the FBI discontinued the initial interrogation when Gore invoked his right to remain silent, (2) there was a lag of seven days between interrogations, and (3) before Simmons began questioning Gore in Miami, Gore was re-advised of his rights under Miranda. Gore, 599 So. 2d at 981 n.5. At the hearing, Gore did not dispute the testimony establishing these facts. That is, Gore offered no evidence to contradict the FBI agents' description of what transpired when they questioned him. Nor did he dispute that there was a seven-day lag between the agents' questioning and Detective Simmons's interrogation. In fact, in testifying at the suppression hearing, Gore corroborated Detective Simmons's statement that he advised Gore of his Miranda rights. On these issues, the trial court was presented with virtually uncontested testimony from both sides that fit seamlessly together into a uniform account of events; we can hardly hold any findings of fact relying on that evidence "unreasonable . . . in light of the evidence[.]" 28 U.S.C. § 2254(d)(2).

Turning to Gore's challenge to the Florida Supreme Court's analysis of his Fifth Amendment right to remain silence claim, we conclude that the court's treatment of this issue - though cursory - fell well within the bounds of reasonableness. The court's decision rested on many of the same factors that formed the basis for the Mosley decision. Here, as in Mosley, interrogation was immediately discontinued by the FBI in Kentucky once he invoked his right to silence. A substantial amount of time - nearly a week - passed before Gore was questioned by the Metro-Dade police. Before that occurred Gore was once again advised of his rights.
Gore contends that the absence of the final Mosley factor renders the Florida Supreme Court's decision an unreasonable application of law. Here, unlike in Mosley, when questioning was resumed, it arguably concerned the same underlying crimes as the initial interrogation. 59 Gore points to no decision of the United States Supreme Court holding either that all the factors considered in Mosley were necessary for a finding that a suspect's rights had been scrupulously honored, or that any single Mosley factor is necessary or sufficient in the "scrupulously honored" analysis.This court has always assessed, on a case-by-case basis, whether an accused's right to remain silent has been scrupulously honored. See Jackson v. Dugger, 837 F.2d 1469, 1472 (11th Cir. 1988). We have not held that the absence of a single Mosley factor is dispositive; rather, our inquiry looks to the circumstances as a whole. See, e.g., United States v. Nash, 910 F.2d 749, 752-53 (11th Cir. 1990) (holding post-invocation statements admissible where some of the Mosley factors were absent).

59 Agents McGuinty and Faust were not aware of the specific state investigations in which Gore was a suspect. The record indicates, however, that they were aware that they were being dispatched to locate Gore not solely because he had violated his probation, but because he was a suspect in several crimes. Their ignorance of the specific crimes does not render their questioning unrelated to those crimes. The interrogation would hardly have been warranted for the probation violation alone. The obvious inference is that agents were seeking information about the other crimes.
In finding that Gore's post-invocation right to remain silent had been scrupulously honored, the Florida Supreme Court relied on the three of the four Mosley factors. Thus, the court implicitly declined to extend United States Supreme Court precedent to require that the fourth Mosley factor - that the post-invocation resumption of questioning concern an unrelated crime - be present to "scrupulously honor" a suspect's right to remain silent. We conclude that this decision was not objectively unreasonable.

V.

We turn now to Gore's contention that his statements to Detective Simmons were admitted in violation of his Miranda-based Fifth Amendment right to counsel. 60

60 The Miranda court noted that "[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning." Miranda, 384 U.S. at 474, 86 S. Ct. at 1628.

A.

In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the Supreme Court set forth a bright-line rule for questioning that takes place after an accused has requested counsel: following such a request for counsel, law enforcement may not resume questioning in counsel's absence. 61 Id. at 484-85, 101 S. Ct. at 1885 ("[A]n accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him[.]"). 62 Following Edwards, absent a finding of waiver, if counsel is not present, any statement made following the request for counsel is presumed to be the result of coercion and is, therefore, inadmissable. See Smith v. Illinois, 469 U.S. 91, 98-99, 105 S. Ct. 490, 494, 83 L. Ed. 2d 488 (1984) (holding that since all statements taken after a clear request for counsel are presumed to be the product of coercion those statements may not cast doubt on the clarity of the request). Unlike the Sixth Amendment right to counsel, the Fifth Amendment right to counsel is not offense-specific. Arizona v. Roberson, 486 U.S. 675, 685, 108 S. Ct. 2093, 2100, 100 L. Ed. 2d. 704 (1988). Statements taken after a resumption of questioning, even on the subject of an unrelated crime, are inadmissable under Edwards. Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990).

61 Concurring in the result in Mosley, Justice White noted the disparate treatments accorded an accused's invocation of the rights to remain silent and an accused's invocation of the right to counsel, observing that the procedural divergence was necessary because "the reasons to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates instead that he wishes legal advice with respect thereto." Mosley, 423 U.S. at 110 n.2, 96 S. Ct. at 329 n.2 (White, J., concurring in result).
62 Subject to waiver analysis, the Edwards rule may not apply, however, where it is the suspect who re-initiates the discussion in the absence of counsel. Oregon v. Bradshaw, 462 U.S. 1039, 1044-47, 103 S. Ct. 2830, 2834-35, 77 L. Ed. 2d 405 (1983).

B.

Of course, the Edwards regime is triggered by a request for counsel. See Smith, 469 U.S. at 98-99, 105 S. Ct. at 494. Absent a request for counsel - an indication to the police that the suspect wishes to interact with them through counsel alone - the Fifth Amendment right does not attach.
On this issue, we are presented with two arguments that Gore did invoke his Fifth Amendment right to counsel. Gore argues that he explicitly invoked his right to counsel and that, therefore, the Florida Supreme Court's conclusion that the trial court had not erred in finding that Gore had not done so represents an unreasonable factual determination. Second, Gore argues the Florida Supreme Court erred in not holding that, as a matter of law, Gore's right to counsel was constructively invoked by the appointment of counsel to represent him at his hearing on the federal probation violation.

1.

Ordinarily, whether a suspect has invoked the right to counsel will be a factual determination. The trial court was presented with conflicting testimony. While Gore did not contest that he had not requested counsel during his initial FBI interrogation, 63 Gore did testify that he requested counsel while being interrogated by Detective Simmons. In contrast, Detective Simmons testified that Gore orally waived his Miranda rights and declined several offers to speak to counsel. Faced with a swearing match, the trial court made a credibility determination, albeit implicitly. The court chose to credit Detective Simmons's account of the interview. The Florida Supreme Court found that "there is no credible evidence that Gore ever asserted his Fifth Amendment right to counsel[.]" Gore v. State, 599 So. 2d 978, 982 (Fla. 1992).

63 Had Gore asserted his Fifth Amendment right to counsel while the FBI was questioning him in Kentucky, the intervening opportunity to consult with counsel would not have been sufficient to honor his right to counsel. In Minnick, the Supreme Court held that intervening consultation with counsel does not affect the bright-line rule of Edwards - a request for counsel under Miranda is a request to have counsel present at future interrogations. Minnick, 498 U.S. at 152-56, 111 S. Ct. at 490-92.
We may disturb this finding only if it was "unreasonable . . . in light of the evidence[.]" 28 U.S.C. § 2254(d)(2). We cannot say that it was. A certain amount of deference is always given to a trial court's credibility determinations. See Fed. R. Civ. P. 52(a). That the case is before us on habeas review heightens that deference. See Rice v. Collins, 546 U.S. 333, 341-42, 126 S. Ct. 969, 976, 163 L. Ed. 2d 824 (2006) (noting that credibility determinations are accorded even greater deference on habeas review).

Here, though, we need not rely exclusively on such deference to resolve the issue before us. The record supports the trial court's implicit determination that Gore waived his right to remain silent. Of particular importance is the fact that Gore does not contest that the interview with Detective Simmons extended from the afternoon throughout the evening. Instead, he argues that - despite the length of the period of questioning - he steadfastly requested a lawyer in the face of a seven-hour plus barrage of questions. Gore offers no explanation for why Detective Simmons continued to question him for hours beyond the point at which the effort must have seemed futile.
In light of the incongruity between the nearly undisputed length of the interrogation, 64 and Gore's account of the questioning, we could not possibly conclude that the Florida Supreme Court's finding that Gore did not request counsel was unreasonable. As we noted, the Edwards exclusionary rule is triggered by the request for counsel. Here there was none. We cannot, therefore, see any basis for challenging the Florida Supreme Court's legal conclusion that Gore's Fifth Amendment right to counsel was violated.

64 Detective Simmons testified that interrogation lasted seven hours, while Gore testified that it went on several hours beyond that.

2.

As he did before the Florida Supreme Court, Gore again argues that even if he did not explicitly invoke his right to counsel, the appointment of counsel during the hearing in federal court in Miami on the probation revocation charge, which was held shortly before he appeared before Detective Simmons for questioning, constructively invoked his right to counsel as a matter of law. 65 Gore argues that the appointment of counsel is the functional equivalent of an invocation under the Fifth Amendment, and, therefore, the absence of counsel during his later interrogation makes any statements he made there subject to suppression under Edwards.

65 Gore did not rely on the fact that he was represented by counsel at appearances before federal magistrate judges while he was detained in Kentucky in arguing his case to the Florida Supreme Court on direct appeal. As we discussed in note 12, supra, very little about these appearances can be learned from the record before us.

The Florida Supreme Court addressed this argument, holding that "[T]he fact that Gore had been advised by an attorney at some point in his time in custody does not necessitate a finding that he invoked his Fifth Amendment right to counsel." Gore, 599 So. 2d at 981. Gore argues that this holding is contrary to or an unreasonable application of federal law. We disagree.
The fact that an accused is represented by counsel on an unrelated matter does not automatically give rise to an assumption that the accused is asserting the right to counsel in regard to all police questioning. See McNeil v. Wisconsin, 501 U.S. 171, 177-82, 111 S. Ct. 2204, 2208-11, 115 L. Ed. 2d 158 (1991). Thus, if an accused is properly advised of the right to counsel under Miranda and non-coercively, knowingly and intelligently waives that right, representation by counsel on an unrelated matter will not taint that waiver and the statements are admissible. Id.
The citationless short shrift given this issue by the Florida Supreme Court notwithstanding, that court's decision was wholly in concert with federal precedent. Gore's claim, therefore, falls well short of satisfying the exacting standards for issuance of a writ of habeas corpus under 28 U.S.C. § 2254(d)(1). 66

66 In his briefs to this court, Gore presents an alternative Fifth Amendment right to counsel argument that was not presented to any of the courts that previously have considered this case. Gore points to his appointed assistant federal public defender's invocation of his Fifth Amendment rights at the hearing in Miami on the probation revocation charge. Gore's attorney requested that the magistrate judge issue an order forbidding all law enforcement authorities from questioning Gore in the absence of counsel, and, in the alternative, announced to the court that Gore wished to invoke his rights under the Fifth Amendment. We set forth the precise language employed by Gore's counsel in note 13, supra. Gore argues that his statements to Detective Simmons were made after that invocation, and thus should have been suppressed under Edwards.
As far as we can tell from the record, Gore's brief to us contains the first mention of the invocation of his Fifth Amendment rights at that hearing. In fact, Gore was not in possession of the transcript of the hearing, on which this argument relies, when he filed his initial brief in this appeal. As noted earlier, he appended the transcript to his reply brief.

Our task on federal habeas review is to determine not whether a state court's factual and legal determinations were correct, but rather, to determine whether they were reasonable. 28 U.S.C. § 2254(d). We are at a loss to explain how we could possibly conclude that the Florida Supreme Court's findings were unreasonable on the basis of evidence never presented to that court. See Miller-El v. Dretke, 545 U.S. 231, 257 n.15, 125 S. Ct. 2317, 2335 n. 15, 162 L. Ed. 2d 196 (2005) (noting that material first presented to a court on federal habeas review is not helpful in determining if state court decisions were reasonable at the time they were made). The Florida Supreme Court's determination was reasonable in light of the record before it. Our power to review its decision ends there.

VI.

The final issue before us is Gore's Sixth Amendment claim. Gore challenges the Florida Supreme Court's decision holding that the admission of Gore's statements to Detective Simmons did not violate his right to counsel under the Sixth Amendment.

A.

The Sixth Amendment provides, in relevant part that "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Sixth Amendment right to counsel serves a purpose distinct from that of the similar Fifth Amendment right. "It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel." Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S. Ct. 1019, 1022, 82 L. Ed. 1461 (1938).

The Sixth Amendment guarantee does not assure only that accused will be assisted by counsel at trial; defendants are "as much entitled to such aid during [the pre-trial] period as at the trial itself." Powell, 287 U.S. at 57, 53 S. Ct. at 60. An accused's Sixth Amendment right to counsel attaches at the initiation of formal criminal proceedings. 67 United States v. Gouveia, 467 U.S. 180, 187-93, 104 S. Ct. 2292, 2297-2300, 81 L. Ed. 2d 146 (1984) (recognizing that "the right to counsel does not attach until the initiation of adversary judicial proceedings"); Kirby v. Illinois, 406 U.S. 682, 687-90, 92 S. Ct. 1877, 1881-83, 32 L. Ed. 2d 411 (1972).

67 At its root, the guarantee protects the layperson - likely ignorant in the ways of the law - who is confronted by prosecutorial expertise and the sometimes Rube Goldbergian intricacies of the legal system. See Ash, 413 U.S. at 306-10, 93 S. Ct. at 2572-74. This purpose would not be served if counsel were denied to a defendant at any formal proceeding that would render a future trial a "mere formality." See United States v. Wade, 388 U.S. 218, 224-25, 87 S. Ct. 1926, 1930-31, 18 L. Ed. 2d 1149 (1967).

A concomitant of the right to the assistance of counsel is the right to have counsel present during questioning regarding crimes to which the right has attached. See Michigan v. Jackson, 475 U.S. 625, 632, 106 S. Ct. 1404, 1408, 89 L. Ed. 2d 631 (1986) (noting that the Sixth Amendment secures for the accused "the right to rely on counsel as a 'medium' between him and the State" (internal quotations removed)); Maine v. Moulton, 474 U.S. 159, 170-71, 106 S. Ct. 477, 484, 88 L. Ed. 2d 481 (1985) ("Once the right to counsel has attached and been asserted, the State must of course honor it[, which] means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel."). Following the initiation of formal proceedings against an accused, therefore, any statement made by the accused in the absence of counsel may not be admitted at trial. 68 See Fellers v. United States, 540 U.S. 519, 523, 124 S. Ct. 1019, 1022, 157 L. Ed. 2d 1016 (2004) ("[A]n accused is denied 'the basic protections' of the Sixth Amendment 'when there [is] used against him at his trial evidence of his own incriminating words, which [law enforcement] agents . . . deliberately elicited from him after he had been indicted and in the absence of his counsel." (quoting Massiah, 377 U.S. at 206, 84 S. Ct. at 1203)).

68 If, however, the accused is not represented and has not requested counsel, an advisement of Miranda rights is sufficient to safeguard the Sixth Amendment right, and any statement given following such advice of rights will be presumed to be the product of a voluntary waiver. Patterson v. Illinois, 487 U.S. 285, 290-97, 108 S. Ct. 2389, 2393-97, 101 L. Ed. 2d 261 (1988).
Unlike the Fifth Amendment right, the Sixth Amendment right to counsel is offense-specific. McNeil v. Wisconsin, 501 U.S. 171, 175-80, 111 S. Ct. 2204, 2207-10, 115 L. Ed. 2d 158 (1991). The right does not attach to uncharged crimes, even if those crimes are factually related to the crime for which formal proceedings have been initiated. Texas v. Cobb, 532 U.S. 162, 121 S. Ct. 1335, 149 L. Ed. 2d 321 (2001).

B.

The Florida Supreme Court said this about Gore's Sixth Amendment claim:
While there is no credible evidence that Gore ever asserted his Fifth Amendment right to counsel, there is evidence that he asserted his Sixth Amendment right to counsel as to the federal charges. Before being questioned by state officials in Miami, Gore was brought before a federal magistrate. At this time, counsel was evidently appointed to represent him in the federal proceedings. Gore contends that because he was unquestionably represented by counsel, the police were prohibited from further interrogating him. However, the appointment of Sixth Amendment counsel is very different from a request for Fifth Amendment counsel to assist in police interrogations.
Gore, 599 So. 2d at 982. After discussing the relevant precedent, the court went on to conclude:
We reject Gore's argument that this Court should not follow McNeil. We believe that the holding adopted by the Supreme Court in McNeil adequately protects the right to counsel, while at the same time recognizing that there is a difference between the appointment of counsel at a preliminary hearing such as first appearance and a request for counsel to assist in police interrogations, a difference which is also present under the Florida Constitution. See Traylor v. State, 596 So. 2d 957 (1992). Making the appointment of Sixth Amendment counsel the equivalent of a request for Fifth Amendment counsel would mean that the police could not question persons in custody about any offense once they have had some preliminary hearing at which Sixth Amendment counsel is routinely granted. The preclusion of interrogation in these situations is simply not mandated by the Constitution. Accordingly, finding no violation of Gore's rights under either the Fifth or the Sixth Amendment, we reject Gore's claim that the trial court erred in denying his motion to suppress.
Id. at 982-83.

As with Gore's Fifth Amendment challenge, we may easily dispose of the contention that the Florida Supreme Court's ruling on Gore's Sixth Amendment claim was "contrary to" established Supreme Court precedent. The court correctly identified the governing precedent. The court cited the Supreme Court's decision in McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991), and quoted from it liberally while tracking its reasoning. Gore, 599 So. 2d at 982-83. In McNeil, Paul McNeil had been arrested for armed robbery and an attorney from the Wisconsin Public Defender's Office had been appointed to represent him on that charge. McNeil, 501 U.S. at 173, 111 S. Ct. at 2206. While McNeil was being held on the armed robbery charge, he was approached on several occasions by police, who - after advising him each time of his Miranda rights - questioned him about an unrelated crime to which McNeil eventually confessed. Id. at 173-74, 111 S. Ct. at 2206-07. The Supreme Court ruled that McNeil's inculpatory statements were admissible, holding that McNeil had waived his right to counsel because the Sixth Amendment right to counsel is specific to the charged offense. Id. at 175-82, 111 S. Ct. at 2207-11. 69

69 The court also held that McNeil's waiver of the right to counsel could not presumed invalid because he had not invoked his Fifth Amendment right to counsel - denying him the benefit of the Edwards rule - and because the Sixth Amendment right is offense-specific - denying him the benefit of the extension of the Edwards bright-line rule to the Sixth Amendment context of Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986). McNeil, 501 U.S. at 175-82, 111 S. Ct. at 2207-11.

The facts here are similar to those confronted by the Supreme Court in McNeil. Gore was arrested pursuant to a warrant issued for violating the terms of his federal probation. In his initial appearance on that allegation, the court appointed an attorney to represent him. Later, the Metro-Dade police questioned him regarding unrelated charges. 70 Prior to this questioning, Gore was advised of his right to counsel, and he waived it. Statements he made during the ensuing interrogation were admitted against him at trial. Given the similarity of these circumstances and those in McNeil, we cannot hold that the Florida Supreme Court's decision was "contrary to" federal law. See Williams v. Taylor, 529 U.S. 362, 406, 120 S. Ct. 1495, 1520, 146 L. Ed. 2d 389 (2000).

70 While Gore's interrogation in Kentucky by agents McGuinty and Faust arguably touched upon issues related to the later state charges filed against Gore, the specific offense for which Gore was detained was the violation of the conditions of his federal probation. In conducting Sixth Amendment analysis, we look to the charged offense. Here, the charged offense was unrelated to the later state charges.

C.

We are left, then, to inquire whether the Florida Supreme Court's decision represents an "unreasonable application" of federal law. 28 U.S.C. § 2254(d)(1). Gore advances a variety of arguments in contending that the trial court's denial of his motion to suppress and the Florida Supreme Court affirmance infringed his Sixth Amendment right to counsel.
Gore was questioned in Miami by Detective Simmons on March 24, 1988. Formal charges for the robbery, kidnapping and murder of Susan Roark were not brought until he was indicted by a Columbia County grand jury on April 25, 1989. Thus, as the Florida Supreme Court held, under McNeil, Gore's offense-specific Sixth Amendment right to counsel for the murder of Roark did not attach until more than a year after Simmons's interrogation took place. Gore nevertheless argues that, in failing to exclude the statements, the Florida Supreme Court unreasonably declined to extend Supreme Court precedent into new contexts. See Dingle v. Sec'y for Dep't of Corr., 480 F.3d 1092 (11th Cir. 2007) (citing Williams, 529 U.S. at 407, 120 S. Ct. at 1520 (O'Connor, J., for the majority)).

1.

Gore first argues that his statements to Detective Simmons should have been suppressed because Detective Simmons interrogated him regarding Susan Roark's disappearance. Gore relies on the essentially pretextual nature of the federal charges for which he was arrested in Kentucky, and the fact that the federal kidnapping charge was dropped in deference to state charges, in an attempt to conflate the federal and state custody and charges into a single, inseparable factual whole. In Gore's view, the federal probation violation warrant was used as a pretext to arrest him in Kentucky for crimes committed in Florida. Because the federal arrest was a pretext, Gore continues, he was actually arrested for the state crimes. Then, according to Gore, on the appointment of counsel by the federal magistrate judge, the Sixth Amendment right attached to the state charges as well.

Gore's argument is impossible to square with clear precedent establishing formal charges as the trigger of the Sixth Amendment right to counsel. Gouveia, 467 U.S. at 187-93, 104 S. Ct. at 2297-2300. Gore was questioned by Detective Simmons more than a year prior to the first formal proceedings related to the Roark murder. The questioning was the sort of routine police investigation not reached by the protections of the Sixth Amendment. Kirby, 406 U.S. at 687-90, 92 S. Ct. at 1881-83. Though Gore's right to counsel had been triggered by the probation violation charge, his argument that other crimes must be included in this right to counsel is foreclosed by the offense-specific nature of the Sixth Amendment right. 71 McNeil, 501 U.S. at 175-82, 111 S. Ct. at 2207-11. At the time of Gore's interrogation by Detective Simmons, Susan Roark's body had not yet been found. Formal charges for the robbery, kidnapping and murder of Susan Roark were not brought until more than a year after the questioning took place. 72 Any attempt to compress the federal arrests and charges with these those contained in the Roark case for Sixth Amendment purposes ultimately fails. 73

71 It is certainly the case that the federal and state authorities worked together to apprehend Gore. This cooperation led to Gore's arrest in Kentucky; the questioning there by agents of the FBI; the hearing before the magistrate judge in Miami at which the assistant U.S. Attorney dismissed the kidnapping charge (involving Tina Corolis's son) and consented to Gore being handed over to the Metro-Dade police; and, finally, Detective Simmons's interrogation which included questions about Susan Roark's disappearance and her black Mustang. Gore's problem is that this seeming unity of federal and state pursuit of a suspect does not unify the substantive underlying crimes.

72 In an apparent attempt to paper over the gap in time between Gore's questioning by Detective Simmons and the return of the indictment in Columbia County for the murder of Roark, Gore, in his brief to this court, continually engages in a sort of factual legerdemain, conflating the charges for the Corolis assault with those involving Susan Roark. For example, Gore argues that the decision to drop the federal charges "essentially served to make the secondary state charges, the primary underlying motive for his arrest, the charges for which his 6th amendment rights should have attached." While misstating the record - the federal kidnapping charge was dropped, the probation violation charge was not - this statement implies that the federal charges were dropped for pending "secondary state charges." Indeed, the federal kidnapping charge was dropped in deference to pending state charges, but the pending state charges were not those before us now. Those state charges involved the attempted murder of Tina Corolis and her son. A warrant for Gore's arrest on those charges had been issued two days before the assistant U.S. Attorney dropped the federal kidnapping charge during the hearing on the probation violation matter. Gore apparently either hopes that we will miss the distinction between the two crimes, or his true purpose here is collaterally to attack his conviction in the Corolis case. At the time Detective Simmons questioned him, Gore was certainly a suspect in Susan Roark's disappearance - Simmons did ask Gore several questions about Roark - but he had not, and probably could not, have been charged with her murder.

73 In his brief to this court, Gore for the first time attempts to circumvent the rule of McNeil by pointing to language in decisions by our sister circuits that indicates that an exception to the offense-specific rule may exist for uncharged crimes that are inextricably intertwined with charged crimes. See United States v. Hines, 963 F.2d 255, 257-58 (9th Cir. 1992); United States v. Cooper, 949 F.2d 737, 743-44 (5th Cir. 1991). This argument is unavailing for a variety of reasons. Gore's reliance on these decisions is questionable at best. In both Hines and Cooper, the courts were confronted with crimes far more factually intertwined than the charges in the Roark case, yet in both decisions the courts rejected the accused's argument that the crimes were inextricably intertwined. Hines, 963 F.2d at 255-57 (holding that similar crimes were logically distinct when "the place time and persons involved were all different" Id. at 257); Cooper, 949 F.2d at 743-44 (holding that a federal weapons charge was not inextricably intertwined with a state armed robbery charge where the weapon from the federal crime was used in the state crime).

Moreover, after the Florida Supreme Court decision issued - and after both Hines and Cooper were handed down - the United States Supreme Court addressed the correct standard to be used in analyzing whether the Sixth Amendment right to counsel attaches to factually similar crimes. In Texas v. Cobb, 532 U.S. 162, 121 S. Ct. 1335, 149 L. Ed. 2d 321 (2001), the Supreme Court held that mere factual similarity between a charged and uncharged crime was insufficient to trigger an accused's Sixth Amendment right in relation to the uncharged crime. Id. at 169-73, 121 S. Ct. at 1342-44. Instead, the Court imported - from Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932) - into the Sixth Amendment context, the standard used in determining whether separate charges based on similar acts violate the Fifth Amendment's Double Jeopardy clause. The Court held that where an accused's Sixth Amendment right to counsel has attached to one crime, it does not attach to an uncharged crime unless that crime has elements identical to those of the charged crime and would require proof of no additional facts. Id.

Cobb is dispositive here. Gore's Sixth Amendment right attached to the subsequently-dropped federal kidnapping charge and to the charge that he violated the conditions of his federal probation. These charges were sufficiently distinct from the charges of murder, kidnapping, and robbery contained in the Roark indictment that the Blockburger test would not be satisfied. Under Cobb, therefore, Gore's Sixth Amendment right to counsel did not attach to the Roark crimes when he was formally charged with, and appointed counsel for, the federal probation violation. We cannot hold that a state court unreasonably failed to extend Supreme Court precedent to a place where the Supreme Court explicitly declined to go.

2.

Gore next argues that his Sixth Amendment right to counsel was violated when law enforcement continued to interrogate him in violation of the court order allowing the public defender Judy Alves to consult with him. Gore contends that the Metro-Dade police deceived Alves and denied her access to Gore in violation of a court order, and that the twin force of this deception and violation amounted to governmental interference with, at least, the spirit of the right to counsel.
Gore's contention fails both as a matter of fact and as a matter of law. First, it is not at all clear from the record that the court order was ever violated or that Alves was ever actively deceived. Alves testified that the order granted her access to Gore at the Dade County jail. During the entire time she unsuccessfully sought to gain access to Gore, Gore was not being held at the jail. Instead, he was in the Homicide Bureau of the Metro-Dade police headquarters. When Alves sought access to Gore in the jail, she was truthfully told that he was not there. When she returned to the circuit judge who had issued the order to complain that the jailors were not honoring the order, an assistant state attorney informed the court that Gore was not currently being held in the jail. 74 The court concluded, therefore, that the order had not been violated. 75 Alves then went to the Metro-Dade police headquarters, and after an initial delay, was told that Gore was there but that she could not see him. It is difficult to see how honesty and compliance with a court order run contrary to the spirit of the Sixth Amendment.

74 The assistant state attorney incorrectly informed the court that Gore had not yet been brought to Metro-Dade police headquarters.
75 The court also indicated that the intent of the order had been to ensure that Alves's effort to contact Gore was not frustrated by correctional officers failing to comply with statutory procedures. The court clearly did not intend the order to be used to disrupt an ongoing police interrogation.

Even were we to accept Gore's assertion that Alves was deceived and that the court order that she had obtained was violated, Gore can point to no established precedent to support his argument that this deception constituted an unconstitutional deprivation of counsel. He does, however, identify and try to distinguish the decision which is fatal to his argument, Moran v. Burbine, 475 U.S. 412, 428-32, 106 S. Ct. 1135, 1144-47, 89 L. Ed. 2d 410 (1986). In Moran, following the arrest of the accused, Brian Burbine, Burbine's sister had hired an attorney on his behalf; the attorney then phoned the police and requested to be present should Burbine undergo questioning. Id. at 417, 106 S. Ct. at 1138-39. The police informed the attorney that they did not intend to question Burbine, before proceeding to do so and eliciting inculpatory statements. Id. Burbine conceded at the time of the questioning that he had not been formally charged and, therefore, under traditional Sixth Amendment analysis, his right to counsel had not attached. Id. at 428-29, 106 S. Ct. 1144-45. He asked the Court to recognize a "right to noninterference with an attorney's dealings with a criminal suspect [that] arises the moment that the relationship is formed[.]" Id. at 429, 106 S. Ct. at 1145. Noting that it was not supported by precedent, the Court found Burbine's argument "both practically and theoretically unsound." Id. at 430, 106 S. Ct. 1145. Reasoning that the Sixth Amendment was not intended to protect the attorney-client relationship, the Court re-affirmed that the Sixth Amendment "becomes applicable only when the government's role shifts from investigation to accusation." Id. at 430, 106 S. Ct. at 1146.

Gore's argument essentially mirrors that rejected by the Supreme Court in Moran. It relies on a non-existent Sixth Amendment principle of non-interference. This case is materially indistinguishable from Moran - neither Burbine nor Gore was formally charged with the subject crime for which the interrogation was being conducted; neither Burbine nor Gore had requested counsel. Moran thus controls here. We cannot conclude that the Florida Supreme Court's decision represented an unreasonable application of federal law because it failed to extend current Sixth Amendment jurisprudence to embrace a principle of non-interference with the attorney-client relationship.

3.

Gore's final Sixth Amendment argument is that the two hearings before the circuit judge - in which Alves obtained and then sought enforcement of an order allowing her to see Gore - qualified as the initiation of formal adversary proceedings against him, thereby triggering his right to counsel. See Gouveia, 467 U.S. at 187, 104 S. Ct. at 2297 ("[I]t has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him."). In Gore's view, the Metro-Dade interrogation accordingly operated to deny Gore's right to counsel. 76

76 Detective Simmons testified that the statements at issue were not elicited until the evening session of questioning. As such, the statements were likely taken after both hearings in the circuit court had occurred.

We need not reach this novel argument. On March 24, 1988 - the day that the interrogation by Detective Simmons and the Alves hearings before the circuit judge took place - Gore was in custody in Miami pursuant to an arrest warrant issued on March 22 for the assault and attempted murder of Tina Corolis. As we have already observed, the Sixth Amendment right to counsel is offense-specific. McNeil, 501 U.S. at 175-80, 111 S. Ct. at 2207-10. Thus, even if we were to hold both that Gore did not waive his right to counsel when questioned by Simmons and that the Alves hearings triggered his right to counsel, it still would not be his right to counsel for the murder of Susan Roark that would have been triggered. What may have been triggered was his Sixth Amendment right to counsel on the Corolis charges. 77

77 As we intimated earlier, a desire collaterally to attack the convictions in the Corolis case seems to inform many of Gore's arguments in this appeal.
The Florida Supreme Court, applying relevant United States Supreme Court precedent, concluded that the admission at trial of Gore's statements to Detective Simmons did not infringe Gore's right to counsel under the Sixth Amendment. Gore has failed to show that this conclusion was either contrary to or an unreasonable application of clearly established federal law. He has therefore failed to carry his burden, under 28 U.S.C. § 2254(d)(1), of demonstrating that habeas relief is appropriate.

VII.

In a well-reasoned and thoroughgoing opinion, the Florida Supreme Court concluded, among many other things, that the trial court did not deny Gore his Fifth and Sixth Amendment rights when it admitted into evidence statements Gore made to Detective Simmons. Gore v. State, 599 So. 2d at 980-83. The district court held that "the Florida Supreme Court's decision with respect to this issue was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings." Gore v. Crosby, No. 3:03-cv-474, 2006 U.S. Dist. LEXIS 96903 (M.D. Fla. Jan. 31, 2006) (unpublished order). For the reasons we have expressed in this opinion, we agree. The district court's judgment is, accordingly, AFFIRMED.

PROCEDURAL POSTURE: Appellant sought review of a judgment rendered by the Circuit Court in and for Dade County (Florida) that convicted him of murder and imposed the death penalty.

OVERVIEW: The trial court allowed the prosecutor for appellee State of Florida to introduce evidence of appellant's similar crimes against two victims for the limited purpose of establishing appellant's identity as victim's murderer. The jury found appellant guilty of first-degree murder and armed robbery. The trial court imposed the death penalty. Appellant sought review of the judgment and sentence. The court reversed and remanded the case. It was likely that the jury considered the evidence to establish appellant's bad character and not solely as impeachment. Any probative value of the inquiry was outweighed by prejudice resulting from the jury's hearing of the actions.

OUTCOME: The court reversed and remanded appellant's conviction for murder and the imposition of the death penalty because the prosecutor for the State of Florida improperly introduced collateral crimes into evidence and mislead the jury in his closing argument.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Marshall Lee Gore. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We reverse for a new trial based on the cumulative effect of the prosecutor's improper cross-examination of Gore and improper closing argument. 1

1 We hasten to point out that the assistant attorney general who represented the State on appeal, Barbara Yates, was not the prosecutor who tried this case. We commend Ms. Yates for her professional conduct in the handling of this appeal.

I. FACTS

Gore was tried in 1995 for the murder of Robyn Novick, last seen alive on March 11, 1988, in the company of a white male resembling Gore. In the early morning hours of March 12, Gore was seen driving Novick's automobile, which he later wrecked and abandoned.
Four days later, on March 16, police found Novick's nude body beside the road in a rural area of Dade County used for dumping trash. She had been stabbed and strangled. The trial court allowed the State to introduce evidence of Gore's similar crimes against two victims--Susan Roark and Tina Corolis 2 --for the limited purpose of establishing Gore's identity as Novick's murderer.

2 Susan Roark was last seen alive on January 30, 1988. Robyn Novick (the victim involved in this appeal) was last seen alive on March 11, 1988. Gore attacked and left Tina Corolis for dead on March 14, 1988, three days after the disappearance of Novick. Gore was tried and convicted first for the attempted murder of Corolis, and then for the murder of Roark.

Gore took the stand on his own behalf. He admitted that he knew Novick and that he had been with her on the night she disappeared. He claimed that Novick loaned her automobile to him. He admitted wrecking and abandoning the automobile, but denied killing Novick.
The jury found Gore guilty of first-degree murder and armed robbery of Novick. The trial court imposed the death penalty following a unanimous jury recommendation. At the time of the Novick conviction, Gore was under sentence of death for the murder of Roark and was serving a life sentence for the rape, robbery and attempted murder of Corolis. Both sentences were affirmed on appeal. See Gore v. State, 599 So. 2d 978 (Fla. 1992); Gore v. State, 573 So. 2d 87 (Fla. 3d DCA 1991).

On appeal in this case, Gore raises six issues regarding the guilt phase of his trial and two issues regarding the penalty phase. Because we find it dispositive in this appeal, we address only one of the guilt phase issues: Whether the prosecutor committed reversible error during the cross-examination of Gore and during closing argument.

II. QUESTIONING ON COLLATERAL CRIMES
A. Child Abuse

Prior to trial, the State filed a notice of intent to introduce Williams 3 --rule evidence, pursuant to section 90.404(2)(b)1, Florida Statutes (1995), concerning Gore's similar crimes against Corolis and Roark. The State argued that the evidence was admissible to demonstrate a unique modus operandi establishing Gore's identity as Novick's murderer. In permitting the State to introduce evidence of those two crimes, the trial court explicitly precluded the State from introducing the details of what occurred after Gore left Tina Corolis for dead. Specifically, these details included the fact that Gore took Corolis's automobile with Corolis's two-year-old son inside and then drove the child to Georgia, where he left the child naked and locked in the pantry of a burned and abandoned house in freezing temperatures. In its pretrial ruling, the trial court found that reference to details concerning the child "would be prejudicial and outweigh[] any probative value."

3 Williams v. State, 110 So. 2d 654 (Fla. 1959).

During defense counsel's direct examination, Gore testified that he was the biological father of the child. The prosecutor, on cross-examination, questioned Gore about this assertion. Without first seeking the trial court's permission, the prosecutor proceeded to ask the following inflammatory questions:
Q. Now, let's talk about your son Jimmy for a moment, who you say is your son?
A. Yes. Tina says it too.
Q. By the way, would you tell the Ladies and Gentlemen of the Jury why on the 16th of March of 1988, after leaving Tina on the side of the road, you left two-year-old, who you say is your son, Jimmy, locked in an abandoned house in Georgia, naked in 30 degree weather
Defense counsel lodged a timely objection, which the trial court overruled. 4 During closing argument, the prosecutor again referred to the kidnapping and abandonment of the child as one of the reasons the jury should disbelieve Gore's testimony.

4 While not determinative to our decision, we note that the pretrial ruling was made by a different judge than the judge who presided at trial.

We begin our analysis with the basic proposition that in order to be admissible, evidence must be relevant. See § 90.402, Fla. Stat. (1995). Relevant evidence is defined as evidence "tending to prove or disprove a material fact." Id. § 90.401. However, the admission of relevant evidence is restricted by the mandate of section 90.403, Florida Statutes (1995), which provides that "relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice." Section 90.403 compels the trial court to engage in this balancing test. See Steverson v. State, 695 So. 2d 687, 688 (Fla. 1997).

In its pretrial ruling, the trial court properly precluded the State from introducing evidence concerning Gore's kidnapping and abandonment of Corolis's son. We are initially concerned with the State's blatant disregard of the trial court's specific pretrial ruling. "The foundation of our legal system depends on fidelity to rules." Halsell v. State, 672 So. 2d 869, 870 (Fla. 3d DCA 1996). If, as the State urges here, the prosecutor genuinely believed that Gore had opened the door to this inquiry by his testimony on direct examination, see generally Bozeman v. State, 698 So. 2d 629 (Fla. 4th DCA 1997), the proper method of proceeding would have been to first inquire of the trial court whether it would modify its earlier ruling, thus giving defense counsel an opportunity to respond fully. In this case, the "cat" was already "out of the bag," and the damaging statement made, before defense counsel could interpose the objection.

The State maintains that its cross-examination on this subject was nonetheless proper for two reasons: (1) to impeach Gore's credibility; and (2) because the inquiry was within the scope of Gore's testimony on direct. Even if the cross-examination constituted potential impeachment or was within the scope of direct, the evidence must still pass the balancing test of section 90.403 to be admissible. In this case, the prosecution was permitted to introduce evidence of Gore's attempted murder of Corolis only for the limited purpose of establishing Gore's identity as Novick's murderer, and then only with a cautionary instruction to the jury limiting the scope of its consideration of this evidence. 5 Neither the issue of Gore's paternity of the child nor Gore's conduct toward the child after attacking Corolis was relevant to establish the similarity of the collateral crime involving the attempted murder of Tina Corolis. See Czubak v. State, 570 So. 2d 925, 928 (Fla. 1981); Witherspoon v. State, 645 So. 2d 146, 147 (Fla. 3d DCA 1994).

5 The trial court gave the following cautionary instruction derived from the Florida Standard Jury Instructions:
[T]he evidence you're about to receive concerning evidence of other crimes allegedly committed by the Defendant will be considered by you for the limited purpose of proving motive and identity on the part of the Defendant, and you should consider it only as it relates to those issues. However, the Defendant is not on trial for a crime that is not included in this Indictment.
See Fla. Std. Jury Instr. (Crim.) 66.

The improper admission of collateral crimes evidence is "presumed harmful" because the jury might consider the bad character thus demonstrated as evidence of guilt of the crime charged. Czubak, 570 So. 2d at 928. Undoubtedly, this questioning of Gore was highly prejudicial in that it involved Gore's reprehensible action of leaving a two-year-old child naked in a burned and abandoned house in thirty-degree weather. Assuming that the State's intent was to impeach Gore's statement that he was the child's father, Gore's conduct towards the child does not necessarily disprove paternity, and there were other less prejudicial means to contradict Gore's representation that he was the child's father. It is likely that the jury considered this evidence to establish Gore's bad character, and not solely as impeachment of his statement concerning the child's paternity. Any probative value of this inquiry was marginal and clearly outweighed by the tremendous prejudice resulting from the jury hearing of these despicable actions. See Sexton v. State, 697 So. 2d 833, 837-38 (Fla. 1997).

B. Other Collateral Crimes

On three separate occasions during cross-examination, the prosecutor questioned Gore as to whether he had sex with a thirteen-year-old girl. However, the State failed to file a notice of intent to introduce any collateral crimes evidence involving the thirteen-year-old, nor otherwise sought the trial court's permission to question Gore regarding this crime. Nonetheless, the trial court overruled defense counsel's timely objections to these questions. These questions had no relevance in this trial other than to prove that Gore was a morally reprehensible individual. Because the sole relevance of this evidence could only be to demonstrate Gore's bad character, it was inadmissible. See Czubak, 570 So. 2d at 928.

In addition, during Gore's cross- examination the prosecutor asked questions about another female, Maria Dominguez. While the State argues that the questions asked concerning Dominguez were themselves innocuous, the State makes no pretense of explaining why the questions were asked in the first place. These questions could only serve to suggest to the jury Gore's involvement in yet another collateral crime against a female victim, close in time to the crime charged. This aspect of the State's cross-examination impermissibly placed before the jury presumptively prejudicial collateral crime evidence without an appropriate predicate for its admissibility having been established. Like the questioning concerning the collateral crime of sex with a thirteen-year-old girl, this questioning could only demonstrate Gore's bad character or propensity to commit crime, and was thus improper. See id.

III. ENTREATY TO CONVICT IF JURY DISBELIEVED GORE

In addition to the improprieties concerning collateral crime evidence, the prosecutor twice exhorted the jurors during closing argument to convict Gore if they disbelieved his testimony:
You see, when I started with you I told you I have the burden of proof and I always have the burden of proof. But you see, now you consider all the evidence presented to you and decide whether I met not just the evidence I presented, but the evidence they presented, you see, because I'll make it really simple for you: If you believe he did not tell you the truth, that he made up a story, that's it, he's guilty of First Degree Murder--
. . . .
You know, instead of standing up here for the next however much time I have left, 25 minutes, and just talking about ridiculous statements which I don't want to anymore, okay, we've all listened to everything, I can't, I can't give you anything else that you haven't heard. I can't make this anymore simpler than it is, because that's what it is. It's simple and it comes down to this in simplicity: If you believe his story, he's not guilty. If you believe he's lying to you, he's guilty. It's that simple.

Defense counsel timely objected to these arguments, but each time his objections were overruled. This was error. While wide latitude is permitted in closing argument, see Breedlove v. State, 413 So. 2d 1, 8 (Fla. 1982), this latitude does not extend to permit improper argument. Here, the prosecutor's closing argument enunciated an erroneous and misleading statement of the State's burden of proof because it improperly asked the jury to determine whether Gore was lying as the sole test for determining the issue of his guilt.

The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the State has proven every essential element of the crime beyond a reasonable doubt. For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt. See Northard v. State, 675 So. 2d 652, 653 (Fla. 4th DCA), review denied, 680 So. 2d 424 (Fla. 1996); Clewis v. State, 605 So. 2d 974, 974 (Fla. 3d DCA 1992); Bass v. State, 547 So. 2d 680, 682 (Fla. 1st DCA 1989). Here, the prosecutor's statement, "[i]f you believe he's lying to you, he's guilty," was nothing more than an exhortation to the jury to convict Gore if it found he did not tell the truth. Thus, it was a clearly impermissible argument. See Bass, 547 So. 2d at 682; cf. Craig v. State, 510 So. 2d 857, 865 (Fla. 1987).

IV. PERSONAL ATTACKS ON GORE

At some point in this trial, the prosecutor allowed his animosity towards Gore to overcome his professional judgment and responsibilities. Apparently because the same prosecutor had previously been involved in prosecuting him, Gore "questioned" the prosecutor as to whether the prosecutor had a vendetta against him, and why the prosecutor continued to prosecute cases against him. The prosecutor responded:
Because I don't like people who kill women. How's that? You want to know why? Because I don't like people preying on women.
Later in the cross-examination, Gore challenged the prosecutor to take the stand, to which the prosecutor responded:
I didn't kill three women, you did. [6] You see, Mr. Gore, you killed women. That's why you're on the stand.

6 Besides being highly improper, this comment by the prosecutor was also misleading. There was no evidence in the record that Gore killed three women.
A. And you're trying to kill me.
Q. I didn't kill anyone.
A. But you're trying to kill me.
Q. Well, you know what, you're right, I am, because somebody who does what you do deserves to die.

Clearly, it was improper for the prosecutor to express his personal belief about Gore's guilt. See Conley v. State, 592 So. 2d 723, 731 (Fla. 1st DCA 1992), reversed on other grounds, 620 So. 2d 180 (Fla. 1993); see also Conley v. State, 620 So. 2d 180, 184 n.7 (Fla. 1993). To be sure, Gore himself was antagonistic during the questioning, but the conduct on the part of the defendant should not have given rise to this "tit-for-tat" exchange between prosecutor and defendant.

During closing argument the prosecutor argued to the jury:
You know, Ladies and Gentlemen, there's a lot of rules and procedures that I have to follow in court, and there's a lot of things I can say or can't say, but there's one thing the Judge can't ever make me say and that is he can never make me say that's a human being.

It is clearly improper for the prosecutor to engage in vituperative or pejorative characterizations of a defendant or witness. See Reaves v. State, 639 So. 2d 1, 5 (Fla. 1994); Goddard v. State, 143 Fla. 28, 36-37, 196 So. 596, 600 (1940); Johnson v. State, 88 Fla. 461, 463-64, 102 So. 549, 550 (1924); Pacifico v. State, 642 So. 2d 1178, 1182-83 (Fla. 1st DCA 1994).
Goaded by Gore, the prosecutor abandoned any semblance of professionalism and engaged in needless sarcasm. By way of example, when Gore claimed everyone was out to get him because he was Jewish the prosecutor remarked:
Q. Oh, Gore is a Jewish name? What did you have for Passover, a bunch of Matzo this year?
This exchange prompted defense counsel to object that the prosecutor was badgering Gore and that the two were behaving "like two juveniles." Another instance of the prosecutor's needless sarcasm occurred when, in response to Gore's claim of having held several occupations, the prosecutor asked:
Q. So you were also a dancer? Were you a cook? How about a bottle washer?
A. I have been a cook.
Q. Candle maker? No? Nothing like that? Comments such as these demonstrate that this prosecutor lost sight of his professional responsibility.

V. PROFESSIONAL RESPONSIBILITY

The conduct of the prosecutor was antithetical to his responsibilities as an officer of the court. As this Court stated nearly fifty years ago: Under our system of jurisprudence, prosecuting officers are clothed with quasi judicial powers and it is consonant with the oath they take to conduct a fair and impartial trial. The trial of one charged with crime is the last place to parade prejudicial emotions or exhibit punitive or vindictive exhibitions of temperament.
Stewart v. State, 51 So. 2d 494, 495 (Fla. 1951). While prosecutors should be encouraged to prosecute cases with earnestness and vigor, they should not be at liberty to strike "foul blows." See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). As the United States Supreme Court observed over sixty years ago, "It is as much [the prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Id.

We can appreciate from our review of the record that Gore was a most difficult defendant and source of frustration to both the trial court and the prosecutor. However, that frustration cannot justify the prosecutor's behavior. We expect prosecutors, as representatives of the State, to refrain from inflammatory and abusive argument, maintain their objectivity, and behave in a professional manner. See, e.g., Urbin v. State, 714 So. 2d 411, 418-22 (Fla. 1998); Garron v. State, 528 So. 2d 353, 359 (Fla. 1988); Adams v. State, 192 So. 2d 762, 764-65 (Fla. 1966); see also Campbell v. State, 679 So. 2d 720, 725 (Fla. 1996); Nowitzke v. State, 572 So. 2d 1346, 1356 (Fla. 1990); Bertolotti v. State, 476 So. 2d 130, 133 (Fla. 1985).
This case is one more unfortunate demonstration that "there are [still] some [prosecutors] who would ignore our warnings concerning the need for exemplary professional and ethical conduct in the courtroom." Urbin, 714 So. 2d at 422. As we did in Garcia v. State, 622 So. 2d 1325, 1331-32 (Fla. 1993), Campbell, 679 So. 2d at 725, Nowitzke, 572 So. 2d at 1356, and Garron, 528 So. 2d at 359, we once again repeat our admonition in Bertolotti, 476 So. 2d at 133:
[W]e are deeply disturbed as a Court by continuing violations of prosecutorial duty, propriety and restraint. We have recently addressed incidents of prosecutorial misconduct in several death penalty cases. . . . It ill becomes those who represent the state in the application of its lawful penalties to themselves ignore the precepts of their profession and their office.
See also Jackson v. State, 498 So. 2d 406 (Fla. 1986); State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986); State v. Marshall, 476 So. 2d 150 (Fla. 1985).

The prosecutor in this case exceeded the bounds of proper conduct and professionalism and provided a "textbook" example of overzealous advocacy. This type of excess is especially egregious in this, a death case, where both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects.
We further note that the trial court has a crucial role in ensuring that lawyers do not exceed the bounds of proper advocacy. As we stated in Bertolotti, "[W]e [again] commend to trial judges the vigilant exercise of their responsibility to insure a fair trial." 476 So. 2d at 134.

VI. CONCLUSION

In considering reversal, we must look to the totality of the improper questions and comments by the prosecutor during his cross-examination of Gore and during closing argument. See, e.g., Campbell, 679 So. 2d at 724; Amos v. State, 618 So. 2d 157, 163 (Fla. 1993). In this case, defense counsel objected to most of the prosecutor's improper comments and questions. The most significant improprieties concerned the improper admission of collateral crime evidence, which is presumptively prejudicial. We cannot conclude beyond a reasonable doubt that, collectively, these errors were harmless and did not affect the verdict, especially since there was no physical evidence directly linking Gore to the murder, Gore did not confess, and the State's case was circumstantial. See DiGuilio, 491 So. 2d at 1139; see also Campbell, 679 So. 2d at 724-25; Amos v. State, 618 So. 2d 157, 163 (Fla. 1993).

Due process requires that fundamental fairness be observed in each case for each defendant. Our system of justice depends on this basic precept. In this case the prosecutor's "over zealousness in prosecuting the State's cause worked against justice, rather than for it." Ryan v. State, 457 So. 2d 1084, 1091 (Fla. 4th DCA 1984). Accordingly, for the reasons stated in this opinion, we reverse and remand for a new trial.

It is so ordered. HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.

PROCEDURAL POSTURE: The Circuit Court in and for Dade County (Florida), on retrial, convicted appellant escort service owner of first-degree murder and armed robbery and sentenced him to death. Appellant sought review.

OVERVIEW: A young woman was last seen alive driving her Corvette with appellant who admitted to being with her at the bar that evening. Later appellant was seen driving it without her, telling others that it was on loan from his girlfriend. After wrecking it, appellant abandoned it and stated that it was stolen. Inside it, police found her personal property and a "power of attorney" executed by appellant. The day after the wreck, appellant gave a friend the car keys and told another friend that police were after him. The woman's body was found several days later, naked and abandoned in a remote area, within a few blocks from where appellant had attacked another young woman and from where he previously had been staying. Appellant was convicted and sentenced. The appellate court affirmed. As there was no mistrial of the first trial, the retrial did not violate double jeopardy. Mistrial of the second was not warranted for a single prosecutorial question of a woman if when 13 she was intimate with appellant. The circumstantial evidence of premeditation and felony murder was sufficient. Reverse Williams rule evidence was properly excluded. Appellant was properly allowed to proceed pro se.

OUTCOME: The convictions and sentence of death were affirmed.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Marshall Lee Gore. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the convictions for first-degree murder and armed robbery and the sentences, including the sentence of death.
BACKGROUND
This appeal arises from the retrial of Gore as ordered by this Court in Gore v. State, 719 So. 2d 1197, 1203 (Fla. 1998). Gore was initially tried, convicted of first-degree murder, and sentenced to death in 1995 for the killing of Robyn Novick. 1 On appeal, this Court reversed the judgment and sentenceand ordered a new trial due to the cumulative effect of the State's improper cross-examination of Gore and improper closing argument. See id. at 1197. Gore was retried and again convicted and sentenced to death.

The record of Gore's retrial reflects the following facts. Police discovered Novick's nude body in a rural area of Dade County on March 16, 1988. Her body was hidden by a blue tarpaulin-like material. Novick suffered stab wounds to the chest and had a belt tied around her neck. According to the medical examiner, Novick died as a result of the stab wounds and mechanical asphyxia. He estimated that Novick was killed between 9 p.m. and 1 a.m. on March 11 into March 12, 1988.
Novick was last seen alive on March 11, 1988, leaving the parking lot of the Redlands Tavern in her yellow Corvette. A witness testified that Novick left with a man, whom the witness identified as Gore.

In the early morning of March 12, Gore was seen driving Novick's automobile. David Restrepo, a friend of Gore's, testified that Gore arrived at his home driving a yellow Corvette with a license plate reading "Robyn." Restrepo had not seen the car before and stated that when he last saw Gore in February 1988, Gore was driving a black Mustang. Gore told Restrepo that his girlfriend had loaned him the Corvette and asked Restrepo to call him "Robyn." Gore also asked Restrepo to accompany him to Coconut Grove.
On the way to Coconut Grove, Gore lost control of the vehicle and "wrecked" the Corvette. Gore attempted to drive the vehicle away from the scene of the accident, but abandoned the vehicle a few blocks away. Restrepo testified that shortly after the accident a marked police vehicle was coming towards them, at which time, Gore told him to "run" because the car was stolen. Gore also told Restrepo that he had left jewelry in the car. When the police arrived on the scene, they recovered credit cards, a driver's license and a cigarette case, all belonging to Novick, as well as a "power of attorney" executed by Gore.

Jessie Casanova, who was thirteen years old at the time of Novick's murder, testified that Gore came to her home in the early morning hours of March 12, driving a yellow Corvette. Gore had been staying with Casanova, her mother, and her mother's friend since February 1988. According to Casanova, Gore returned to her home later that day, stating that he had been injured in a car accident. At that time, Gore gave Casanova the keys to the Corvette. FBI Special Agent Carl Lowery testified that Novick's body was recovered "within a few hundred feet" from this house.
The following night, March 13, Gore went to the house of a friend, Frank McKee, and asked him if he could borrow some money and stay the night. Gore stated that the police were looking for him. Gore also informed his friend that he had recently been in a car accident involving a yellow Corvette and that he had lost some jewelry. McKee refused to allow Gore to spend the night and Gore subsequently left in a cab.

In its case-in-chief, the State also introduced Williams 2 rule evidence that Gore committed similar crimes against Roark and Coralis. The State presented evidence that Gore had murdered Roark shortly after her disappearance in January 30, 1988, by inflicting trauma to her neck and chest. In addition, evidence established that Gore stole Roark's black Ford Mustang and other personal property, then left her nude body in a rural area used as a trash dump. Similarly, the State presented evidence that Gore attacked Coralis on March 14, 1988, two days after the murder of Novick. Coralis herself testified against Gore, stating that he beat her with a rock, raped, choked and stabbed her, and left her for dead on the side of the road near the scene where Novick's body was found. Gore proceeded to steal Coralis's red Toyota sports car and personal property.

2 Williams v. State, 110 So. 2d 654 (Fla. 1959).

FBI agents finally arrested Gore in Paducah, Kentucky on March 17, 1988. At the time of his arrest, Gore was in possession of Coralis's red Toyota automobile and he had her bank and credit cards in the pocket of his jacket. Police officers subsequently questioned Gore regarding the Coralis and Roark crimes. According to the police, Gore denied knowing Roark or Coralis and denied all involvement in the crimes. Gore also denied knowing Novick. When police prepared to show Gore a photograph of Novick, Gore stated "just make sure it is not gory" because his "stomach could not take it." At the time that Gore made such statements, the police had yet to inform Gore that Novick was dead. Detective David Simmons of the Miami-Dade Police Department testified that when Gore looked at Novick's picture, Gore's eyes "swelled with tears." Gore also stated that "if I did this, I deserve the death penalty."
In his defense, Gore took the stand and testified on his own behalf. Gore claimed that prior to his interrogation by police in Miami concerning the Novick murder, reporters previously had told him upon his arrest that Novick was dead. He also claimed that during his interrogation, police had placed gruesome photographs of the murders all over the interview room. Moreover, Gore stated that police had given him a polygraph examination, which he claimed he had passed. 3

3 Gore's claims concerning the officers' use of gruesome photographs and that he was given a lie detector test were refuted by Detective Steven Parr and Detective Lou Passaro of the Miami-Dade Police Department. Both testified during the State's rebuttal.

Gore testified that he was the owner of an escort service and claimed that Coralis, Novick, Roark, and Restrepo all worked for the escort business. Gore maintained that Novick worked for him as a nude dancer and he admitted that he was with Novick at the Redlands Tavern on the evening of March 11, 1988. Gore, however, denied killing her. Gore explained that he was driving Novick's Corvette and that he had arranged for both Novick and Coralis to work as escorts that night. Gore claimed that after leaving the Redlands Tavern, he drove Novick to a club where Coralis worked. According to Gore, Novick, Coralis, and another woman left the club with three men in a Mercedes. Gore claimed that he followed this group in Novick's vehicle to a warehouse in Homestead, Florida. Gore stated that he called the warehouse later that night and that the phone was answered by a member of a pro-Castro group, with which one of the men was affiliated.

Gore testified that he spoke with Novick later that night and informed her about the accident and told her to report the car stolen so that she could collect the insurance proceeds. During this conversation, Novick told Gore that Coralis had left in the middle of the night because there were "problems" with the three clients who were angry about missing drugs and drug money. Gore claimed that he knew that Coralis previously had sold some drugs and used the proceeds to buy a new car.
Gore also testified that he spoke with Coralis a few days later, and that she was scared because someone was looking for her. Gore claimed that Coralis wanted a gun and that he had arranged a meeting with her in an effort to assist Coralis in selling the remainder of her drugs. Furthermore, Gore claimed that he later saw the men who were with Novick and Coralis on the night of the Novick murder and they told him that Novick "was picked up" from the warehouse.

Addressing his relationship with Susan Roark, Gore admitted that he knew her for many years. He acknowledged that he was with Roark on the last night that she was seen alive. He stated, however, that Roark had visited him during his incarceration in Miami, indicating that it was impossible for him to have murdered Roark. Gore also asserted that Dr. William Maples, a forensic anthropologist, could testify that Roark had been dead for only three weeks when her remains were recovered and that Gore had been in jail for six months at that time. Furthermore, Gore asserted that the evidence found at the site where Roark's body was found did not link him to the crime.
On cross-examination, Gore admitted that he previously had been convicted of committing fifteen felonies. Gore denied trying to kill Coralis and claimed that her injuries were the result of her jumping out of a moving car. Gore also asserted that all of the State witnesses had lied and he refused to explain why he was in possession of the property of people who were either killed or attacked.

Ana Fernandez testified on Gore's behalf. Fernandez worked for Gore in 1984 or 1985 when she was fifteen years old, answering phones for the escort service. Fernandez claimed to have known Roark, Coralis, and Novick through her association with Gore. However, she could not state when, where, or how many times that she had met Coralis or Novick and was unable to describe them. Moreover, when presented with a photograph of several women, she could not identify Coralis.

After the close of all the evidence, the jury convicted Gore of first-degree murder and armed robbery with a deadly weapon of Novick. During the penalty phase, Gore chose to represent himself. The jury recommended that Gore be sentenced to death by a vote of twelve to zero. The trial court imposed the death penalty for the first-degree murder conviction and imposed an upward departure life sentence for the armed robbery conviction to run consecutive to any other sentence Gore was serving. In its sentencing order, the trial court found the following three aggravating circumstances: (1) Gore was previously convicted of another capital felony involving the use or threat of violence to the person; 4 (2) the capital felony was committed while Gore was engaged in the commission of, or an attempt to commit, or in flight after committing or attempting to commit any robbery; and (3) the capital felony was committed in a cold, calculated and premeditated manner without any pretense of legal justification ("CCP"). The trial court found no statutory mitigating circumstances, but did find three nonstatutory mitigating circumstances: (1) Gore suffered hearing loss (minimal weight); (2) Gore suffered from migraine headaches (minimal weight); and (3) Gore had previously stopped an altercation between Raul and Marisol Coto (minimal weight). 5 The trial court concluded that the aggravators outweighed the mitigators and sentenced Gore to death.

4 This aggravating circumstance pertained to the first-degree murder, kidnaping and robbery of Susan Roark, and the attempted first-degree murder, sexual battery, armed burglary, armed robbery, and armed kidnaping of Tina Coralis.
5 Raul and Marisol Coto are the parents of Jessie Casanova. According to Casanova's penalty phase testimony, while Gore was living with Casanova, Marisol Coto, and Rosa Lastra, Gore broke-up an altercation between Raul and Marisol and stopped Raul from becoming violent.

6 Gore raises the following issues: (1) the Double Jeopardy Clause of the United States and Florida Constitutions prevented the State from retrying Gore for first-degree murder and armed robbery; (2) the trial court erred in denying his motion for a mistrial following the State's questioning of Jessie Casanova about whether she had an "intimate relationship" with Gore; (3) the trial court erred in denying Gore's motion for a judgment of acquittal on charges of first-degree murder and armed robbery; (4) the trial court abused its discretion in excluding reverse Williams rule evidence pertaining to the murder of Paulette Johnson, which allegedly supported Gore's hypothesis of innocence; (5) the State introduced improper collateral crime evidence during the penalty phase; (6) the trial court erred in finding and weighing the CCP aggravating circumstance; (7) the trial court erred in permitting Gore to represent himself during the guilt phase closing argument and during the penalty phase of trial; and (8) Gore received ineffective assistance of counsel during the penalty phase.

GUILT PHASE
A. DOUBLE JEOPARDY

In the first issue, Gore claims that by retrying him in this case, the State violated his constitutional rights by placing him in double jeopardy. Relying on Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982), Gore asserts that the State's actions during cross-examination of Gore and closing argument were so egregious that this Court should find that the Double Jeopardy Clause of both the United States and Florida Constitutions prevented the State from retrying him in this case.
As stated by the United States Supreme Court in Kennedy, the Double Jeopardy Clause would prevent the State from retrying a defendant where it is established that the judge or prosecutor, by his or her own egregious conduct, caused the defendant to move for a mistrial, and the conduct of the judge or prosecutor "was intended to provoke the defendant into moving for a mistrial." 456 U.S. at 679. "Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Id. at 676. Despite this limited exception barring a retrial, the Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the State from retrying a defendant who succeeds in getting his conviction set aside on appeal due to some error in the proceedings below. See Lockhart v. Nelson, 488 U.S. 33, 38, 102 L. Ed. 2d 265, 109 S. Ct. 285 (1988); see also Ruiz v. State, 743 So. 2d 1, 9-10 n.11 (Fla. 1999) (holding that double jeopardy did not bar State from retrying defendant despite the fact that prosecutors "attempted to tilt the playing field and obtain a conviction and death sentence"); Keen v. State, 504 So. 2d 396, 402 n.5 (Fla. 1987) (holding double jeopardy did not prevent a retrial of defendant arising from prosecutorial misconduct).
Gore's reliance on Kennedy is misplaced. In the present case, Gore did not successfully abort the first trial pursuant to a motion for a mistrial. Rather, Gore's convictions were overturned on appeal. Thus, the limited Kennedy exception to the Double Jeopardy Clause does not apply here and it was not error for the State to retry Gore despite the prosecutors' actions in the first trial. See Ruiz, 743 So. 2d at 10 n.11; Keen, 504 So. 2d at 402 n.5.

B. MOTION FOR A MISTRIAL

In the second issue, Gore claims that the trial court erred in denying his motion for a mistrial after the State questioned Jessie Casanova, in the course of her testimony as a State witness, about whether she had an "intimate relationship" with Gore. Gore contends that the State's question was unfairly prejudicial because Casanova was only thirteen years old at the time of the murder.
Immediately following the State's question, defense counsel objected on grounds that such questioning was improper Williams rule evidence and subsequently moved for a mistrial. The trial court denied the motion for a mistrial. However, the trial court sustained the objection and gave the following instruction to the jury:
The last objection was sustained. I'm going to strike from the record the last response made by the witness. You must disregard it in your deliberations. Are you all able to follow the instruction? Is there anyone at all who would be influenced in any way by the last responses you just heard from the witness? If so, just raise your hand. For the record, I see no hands. All jurors said they could follow that instruction.

A ruling on a motion for a mistrial is within the sound discretion of the trial court and should be "granted only when it is necessary to ensure that the defendant receives a fair trial." Goodwin v. State, 751 So. 2d 537, 547 (Fla. 1999) (quoting Cole v. State, 701 So. 2d 845, 853 (Fla. 1997)). Moreover, as this Court stated in Goodwin, the use of a harmless error analysis under State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), is not necessary where "the trial court recognized the error, sustained the objection and gave a curative instruction." 751 So. 2d at 547.
We hold that the trial court did not abuse its discretion in denying Gore's motion for a mistrial. This single question is in marked contrast to the error in the first trial when on three separate occasions during cross-examination of Gore, the prosecutor questioned Gore as to whether he had sex with a thirteen-year-old girl (referring to Casanova). See Gore, 719 So. 2d at 1200. In the first trial, the trial court overruled defense counsel's timely objections to these questions. See id. In addition, our reversal resulted from the cumulation of multiple errors throughout the trial caused by the conduct of the prosecutor. See id. at 1202-03.

In the present case, the State asked Casanova one isolated question regarding the nature of her relationship with Gore. The trial court sustained the objection and immediately instructed the jury to disregard Gore's relationship with Casanova, and the State did not refer to Gore's relationship with Casanova during closing argument. Any prejudice that may have ensued from the State's improper question was exacerbated by Gore himself, who referred to the improper relationship with thirteen-year-old Casanova on several occasions during the State's cross-examination of Gore despite the fact that the State did not initiate any additional questions about Gore's relationship with Casanova. Accordingly, we hold that the trial court did not abuse its discretion in denying Gore's motion for a mistrial. See Walker v. State, 707 So. 2d 300, 313 (Fla. 1997); Cole, 701 So. 2d at 853.

C. MOTION FOR JUDGMENT OF ACQUITTAL

Gore contends that the trial court erred in failing to grant his motion for a judgment of acquittal on charges of first-degree murder and armed robbery. Gore argues that the circumstantial evidence does not prove that Gore killed Novick with a premeditated design, or during the commission of a felony, as is necessary to support a finding of guilt for first-degree murder. In addition, Gore argues that the State presented insufficient evidence to support his conviction for armed robbery.

As stated in Orme v. State, 677 So. 2d 258, 262 (Fla. 1996), a motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. Seeid. (citing State v. Law, 559 So. 2d 187, 188-89 (Fla. 1989)).
[The court's] view of the evidence must be taken in the light most favorable to the state. The state is not required to "rebut conclusively every possible variation" of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events.
Law, 559 So. 2d at 188-89 (citations and footnote omitted) (quoting State v. Allen, 335 So. 2d 823, 826 (Fla. 1976)). "In sum, the sole function of the trial court on motion for directed verdict in a circumstantial-evidence case is to determine whether there is prima facie inconsistency between (a) the evidence, viewed in the light most favorable to the State and (b) the defense theory or theories." Orme, 677 So. 2d at 262. If such inconsistency exists, then the question is for the finder of fact to resolve. See Woods v. State, 733 So. 2d 980, 985 (Fla. 1999). The trial court's finding will not be reversed on appeal if there is competent substantial evidence to support the jury's verdict. 7 See id.; Orme, 677 So. 2d at 262.

7 The State sought a first-degree murder conviction on alternative theories of premeditated murder and felony-murder with the underlying offenses of armed robbery. See Griffin v. United States, 502 U.S. 46, 47, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991) (stating that even if the evidence does not support the specific verdict, any error in charging the jury on that theory is harmless where the evidence supports a conviction for the general verdict). Because a general verdict form was used in this case, in order to affirm Gore's first-degree murder conviction, competent substantial evidence must exist to support either premeditated or felony-murder (predicated on armed robbery). See Jones v. State, 748 So. 2d 1012, 1024 (Fla. 1999) (citing Mungin v. State, 689 So. 2d 1026, 1029-30 (Fla. 1995)). In addition, competent substantial evidence must exist to support Gore's conviction for armed robbery.

1. PREMEDITATED MURDER
We first examine Gore's contention that the trial court erred in failing to grant a judgment of acquittal on the first-degree murder charge because the State failed to present sufficient evidence to support premeditated murder. "Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill." Green v. State, 715 So. 2d 940, 943 (Fla. 1998). This purpose to kill must exist for sufficient time before the homicide "to permit reflection as to the nature of the act to be committed and the probable result of that act." Id. at 944. Premeditation can be shown by circumstantial evidence. See Woods, 733 So. 2d at 985. As this Court has stated:
Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.
Green, 715 So. 2d at 944 (quoting Holton v. State, 573 So. 2d 284, 289 (Fla. 1990)).
Applying these principles to this case, we hold there is competent substantial evidence supporting Gore's conviction for premeditated murder of Novick and to rebut Gore's hypothesis of innocence. The official cause of Novick's death was stab wounds to the chest associated with mechanical asphyxia-strangulation. One of the stab wounds to Novick's chest was so deep that it penetrated her heart and lung. This wound was severe enough to cause Novick's death. However, while Novick was still alive, she was strangled with a silver belt so forcefully that she suffered a fracture of her trachea. There were no defensive wounds found on Novick's body and no evidence was presented indicating that the murder was the result of a provocation or ill will between Novick and Gore.
The State presented additional evidence to support a conviction of premeditated murder, including Gore's history of targeting young, attractive women who drove sporty automobiles and thereafter killing or attempting to kill them. The State points to the fact that in this case, as in the prior similar crimes, Gore did not attack these women in haste as evidenced by the fact that no blood or any other physical evidence of foul play was found in the victims' vehicles. Rather, the evidence suggests that Gore acted with deliberation by removing the victims from their vehicles prior to stabbing them. Further, there was no evidence that any of the victims resisted or struggled with Gore, an indication that Gore acted calmly and with deliberation.
Based upon the circumstantial evidence presented in this case, we hold that there was competent substantial evidence supporting the jury's first-degree murder verdict. See Crump v. State, 622 So. 2d 963, 971 (Fla. 1993) (holding sufficient evidence of premeditation existed to support jury's verdict where defendant struck and then strangled victim and had engaged in a pattern of similar crimes). Accordingly, the trial court did not err in denying Gore's motion for a judgment of acquittal.
2. FELONY MURDER AND ARMED ROBBERY
The State contends that even if the evidence did not support premeditated murder, the evidence does support Gore's conviction based upon a felony murder theory. We agree. Robbery is "the taking of money or other property which may be the subject of larceny from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear." § 812.13(1), Fla. Stat. (1989). Property that is the subject of the taking need not be in the actual physical possession or immediate presence of the person who was robbed. See Jones v. State, 652 So. 2d 346, 350 (Fla. 1995). "Property is taken from 'the person or custody of another' if it is sufficiently under the victim's control so that the victim could have prevented the taking if she had not been subjected to the violence or intimidation by the robber." Id. Under section 812.13(3)(b), Florida Statutes (1989), the violence or intimidation may occur prior to, contemporaneously with, or subsequent to the taking of the property so long as both the act of violence or intimidation and the taking constitute a series of acts or events. See Jones, 652 So. 2d at 349. The taking of property after a murder, however, does not constitute robbery if the motive for the murder was not the taking of property. See Mahn v. State, 714 So. 2d 391, 397 (Fla. 1998) (citing Knowles v. State, 632 So. 2d 62, 66 (Fla. 1993), Clark v. State, 609 So. 2d 513, 515 (Fla. 1992), and Parker v. State, 458 So. 2d 750, 754 (Fla. 1984)).

We hold that there is competent substantial evidence to support the finding that Gore committed murder during the commission of a robbery. In the present case, Novick was last seen alive driving her Corvette from the Redlands Tavern, accompanied by Gore, who admitted to being with Novick at the bar that evening. Hours later, Gore was seen driving the Corvette, without Novick, telling others that the car was on loan from his girlfriend. After wrecking the car, he abandoned it and stated that it was stolen. Inside the vehicle, police recovered Novick's personal property and a "power of attorney" executed by Gore. The day after Gore wrecked the car, Gore gave a friend the keys to the vehicle and told another friend that the police were after him. Novick's body was found several days later, naked and abandoned in a remote area, within a few blocks from where Gore had attacked Tina Coralis and from where Gore previously had been staying.

The evidence also revealed that when Gore took Novick's Corvette, he did not have a car of his own. Gore's prior convictions established a pattern of attacking women in order to gain their property and use their cars. In each of these prior instances, Gore attempted to murder or actually murdered women, stole their personal possessions and cars, and left the bodies in remote areas.
In sum, there is competent substantial evidence supporting Gore's conviction for armed robbery. Therefore, we hold that the trial court did not err in denying Gore's motion for a judgment of acquittal on charges of first-degree murder and armed robbery.

D. REVERSE WILLIAMS RULE EVIDENCE

In this claim, Gore contends that the trial court erred in excluding reverse Williams rule evidence pertaining to the murder of a Paulette Johnson, which Gore argues supports his hypothesis of innocence. Gore alleges that Johnson was a woman from Miami who worked for his escort service and who was murdered in Tennessee in 1989 in the very same manner as both Novick and Coralis were murdered. Gore argues that because he was incarcerated at the time of Johnson's death, evidence of Johnson's murder supported his assertions that someone else had murdered Novick.

Prior to trial, the State filed a motion in limine to prevent Gore from introducing evidence relating to the alleged murder of Paulette Johnson. The State argued that the murder of Johnson was insufficiently similar to the murders of both Novick and Roark to be admissible. In addition, the State contended that the woman murdered in Tennessee was actually named "Pauline Johnson," not "Paulette Johnson." Thus, the State argued that Gore failed to present sufficient evidence demonstrating that "Pauline Johnson" was the same "Paulette Johnson" who Gore claimed worked for his escort service. Furthermore, the State argued that any testimony concerning the death of Johnson was hearsay and inadmissible because Gore could not satisfy the test for admissibility of similar fact evidence of other crimes for exculpatory purposes. The trial court granted the State's motion stating that Gore could not establish that Pauline Johnson, the woman murdered in Tennessee, was the same Paulette Johnson who Gore claimed was involved in his escort business. In addition, the court ruled that Gore failed to show how the murder was relevant in this case.

Although the issue was revisited at trial, the court again excluded all testimony pertaining to the death of Johnson because Gore could not satisfy the test for admissibility by demonstrating the necessary relevance of the evidence. 8 Gore now argues on appeal that the trial court erred in excluding this evidence because it could have established reasonable doubt as to his guilt in the murder of Novick.
In Rivera v. State, 561 So. 2d 536, 539-40 (Fla. 1990), this Court addressed the situation where a defendant, standing trial for murder, attempted to raise reasonable doubt in jurors' minds by introducing evidence that a murder of a similar nature had been committed by someone other than the defendant and that the murder occurred while the defendant was in police custody. In addressing the matter, this Court stated that where evidence tends in any way, even indirectly, to establish reasonable doubt of defendant's guilt, it is error to deny its admission. § 90.404(2)(a), Fla. Stat. (1985). However, the admissibility of this evidence must be gauged by the same principle of relevancy as any other evidence offered by the defendant. Id. at 539; see State v. Savino, 567 So. 2d 892, 894 (Fla. 1990) (defendant must demonstrate "a close similarity of facts, a unique or 'fingerprint' type of information" in order to introduce evidence of another crime to show that someone other than the defendant committed the instant crime).

8 Despite the trial court's ruling to exclude any reference to the murder of Paulette Johnson, Gore violated the trial court's order by discussing the murder during his testimony. The trial court sustained the State's objection and subsequently held Gore in criminal contempt of court.

In this case, Gore sought to introduce evidence pertaining to the murder of Pauline Johnson, which allegedly occurred while Gore was in police custody, claiming that this murder was committed in a similar manner to the murders of Novick and Roark. However, Gore did not proffer the underlying facts of the Johnson murder to the trial court to enable the court to determine whether the murder was relevant and sufficiently similar to Novick's murder to warrant admissibility. Therefore, because Gore failed to show the relevance and requisite similarities between this case and the killing of Johnson, the trial court did not abuse its discretion in excluding evidence pertaining to the murder of Johnson.

PENALTY PHASE
A. CCP AGGRAVATING CIRCUMSTANCE

In the present case, the trial court made extensive findings in support of the CCP aggravating circumstance. 9 Nevertheless, Gore claims that the trial court erred in finding and weighing this aggravator. We disagree. In order to prove the existence of the CCP aggravator, "the State must show a heightened level of premeditation establishing that the defendant had a careful plan or prearranged design to kill." Bell v. State, 699 So. 2d 674, 677 (Fla. 1997). A trial court's ruling on an aggravating circumstance will be sustained on review as long as the court applied the right rule of law and its ruling is supported by competent substantial evidence in the record. See Almeida v. State, 748 So. 2d 922, 932 (Fla. 1999) (citing Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997)).

9 These findings included the following: (1) Gore had a history of targeting young, attractive women who drove new sporty automobiles; (2) Gore previously was convicted of murdering Susan Roark after stabbing her to death, stealing her car and jewelry, and dumping her body in a remote area; (3) Gore did not have his own automobile and theft of Novick's automobile "was one of the motivating factors" for the murder, but "was clearly not the Defendant's sole plan"; (4) Gore murdered Novick after a "well thought-out attack," as indicated by the fact that Novick was stabbed and strangled to death, she had no defensive wounds, and her nude body was left in a remote area, "one which [Gore] reasonably believed would hide the body until nature, insects and other predators would erase any identifying evidence of the victim"; (5) Gore used the same modus operandi in the murders of Novick, Roark, and the attempted murder of Coralis; (6), Gore took his victims' jewelry and automobiles after committing murder or attempted murder; (7) Gore did not panic or act hastily and attack any of these women in their cars, as evidenced by the fact that no blood or any other physical evidence of foul play was found in the cars; rather, Gore acted calmly and with deliberation when he removed each victim from her vehicle prior to stabbing her; (8) there was no evidence to suggest that any of his victims resisted or struggled with Gore, also indicating that Gore acted calmly and deliberately when he took Novick's life; (9) Novick's injuries demonstrate that the killing was not prompted by an emotional frenzy, panic, or fit of rage--Novick suffered two stab wounds to the neck and an injury to her neck and trachea caused by the extensive pressure applied by Gore during the strangulation; and (10) Novick was alive while being stabbed and strangled and eventually bled to death.

The facts of this case clearly support a finding of a heightened level of premeditation and this Court previously has affirmed findings of CCP under similar circumstances. See Wuornos v. State, 644 So. 2d 1000, 1008-09 (Fla. 1994) (affirming trial court's finding of CCP where evidence established that defendant lured victim to an isolated area, killed victim, and proceeded to steal victim's property, and defendant had previously killed multiple victims in similar manner). Based on our review of the record, we find that the trial court did not err in finding this aggravating circumstance. 10

10 Gore also argues that several of the trial court's factual findings enunciated in its sentencing order pertaining to CCP were not supported by the evidence. In particular, Gore challenges the court's finding that after stabbing Novick, Gore "looked her in the eye (since she was lying on her back, facing upward) and strangled the last bit of life out of her." In this case, there was no direct testimony that Gore looked Novick in the eye as he was killing her, and the medical examiner testified that he could not be certain whether Novick's eyes were open or closed at the time of her death. Although Gore may have "looked [Novick] in the eye" as he was killing her, there is no evidence in the record to support the trial court's finding or to rule out other scenarios. Thus, we conclude that the trial court's description of the final moments of the homicide was based upon speculation. See Knight v. State, 746 So. 2d 423, 435 (Fla. 1998). However, we find this inclusion harmless in view of the other strong evidence supporting the trial court's multiple findings that support the CCP aggravating circumstance. See id. at 436.

B. STATE'S IMPEACHMENT OF GORE

Gore also argues that the State improperly questioned him on cross examination during the penalty phase about collateral crimes allegedly committed by Gore against other women. Gore argues that the State's questioning constituted improper Williams rule evidence and was admitted solely to demonstrate Gore's bad character or propensity to commit crime. We disagree and hold that Gore opened the door to this line of questioning by placing his propensity for violence in issue by stating that he was "not a violent person."

There is a different standard for judging the admissibility and relevance of evidence in the penalty phase of a capital case than during the guilt phase, especially where the focus of the evidence is directed towards the character of the defendant. See Hildwin v. State, 531 So. 2d 124, 127 (Fla. 1988). As this Court has stated: [D]uring the penalty phase of a capital case, the state may rebut defense evidence of the defendant's nonviolent nature by means of direct evidence of specific acts of violence committed by the defendant provided, however, that in the absence of a conviction for any such acts, the jury shall not be told of any arrests or criminal charges arising therefrom.
Id. at 128; see Smith v. State, 515 So. 2d 182, 185 (Fla. 1987) (stating that the State properly presented evidence of defendant's prior manslaughter conviction during the penalty phase after defense witness testified that the defendant "would never harm anyone").

Similar to Hildwin, in the present case, Gore placed his character in issue by taking the stand and testifying "you heard that I'm not or not known as a violent person, and I'm not a violent person." In doing so, Gore opened the door to the State's impeachment evidence and the State proceeded to properly question Gore about his collateral acts of violence towards women to impeach Gore's assertions that he was a nonviolent person. 11 We hold that the State's questioning was proper rebuttal and the trial court did not err in allowing the State to question Gore about his prior acts of violence.

FOOTNOTES

11 We distinguish what took place here from what occurred in Gore's first trial. In Gore's first appeal, this Court held that the State's questioning of Gore about collateral acts of violence directed at Maria Dominguez was improper because it "could only demonstrate Gore's bad character or propensity to commit crime." Gore, 719 So. 2d at 1200. Importantly, in that case, the State's questions came during the guilt phase of trial and Gore had not placed his character in issue by claiming that he was a nonviolent person.

C. GORE'S SELF-REPRESENTATION DURING PENALTY PHASE

Gore next contends that his decision to represent himself in the guilt phase closing argument and during the penalty phase was not knowing and voluntary, as required by Faretta v. California, 422 U.S. 806, 835, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), because he was forced to choose between proceeding pro se or being represented by incompetent counsel. Despite Gore's unequivocal requests at trial that he be permitted to represent himself, he now argues that the trial court erred in permitting him to proceed pro se during the guilt phase closing argument and penalty phase proceedings.

We detail the actual proceedings related to this claim in order to properly evaluate Gore's assertions. Prior to the retrial in this case, Gore first complained to the trial court about the way his attorney was proceeding on several issues, including the admission of Williams rule evidence, and Gore requested that he be allowed to represent himself. Before allowing Gore to proceed pro se, in accordance with Faretta, the court inquired as to why Gore wanted to remove counsel and represent himself and determined whether Gore was competent to do so. The trial court instructed Gore of the advantages of having appointed counsel and the disadvantages of self-representation. The court also instructed Gore that should he choose to proceed pro se, he would be required to abide by the rules of criminal law and courtroom procedure. In addition, the trial court asked Gore several questions to determine whether he was competent to make a knowing and intelligent waiver of counsel. Among other areas, the court inquired into Gore's educational background, whether he was currently under the influence of drugs and alcohol, and whether he had physical or mental problems that would hinder his self-representation. The court concluded that Gore understood the dangers and disadvantages of self-representation and that he was competent to make a knowing and intelligent waiver of counsel.

At a subsequent hearing, however, Gore changed his mind and requested that his attorney be reappointed. The trial court granted Gore's request. However, immediately following the State's opening statements, Gore again informed the court that he was unhappy with the manner in which defense counsel was representing him and stated that he wished to represent himself for the remainder of the trial. After discussing the matter with the court, Gore changed his mind and stated that he did not wish to represent himself.

Despite proceeding through trial represented by defense counsel, Gore informed the trial court, prior to the guilt phase closing arguments, that he wanted to be "lead counsel" and to conduct closing argument himself. Gore stated that defense counsel deprived him of his right to testify, referring to the fact that defense counsel would not recall Gore to testify following the State's rebuttal case. In accordance with Nelson, 12 the trial court inquired into Gore's allegations. Defense counsel explained to the trial court that he had discussed the issue extensively with Gore and explained to him that the additional testimony that Gore had proposed was irrelevant. 13 Before allowing Gore to conduct the guilt phase closing argument pro se, the trial court reminded Gore of the rights and pitfalls pertaining to self-representation. Furthermore, the trial court reviewed the transcript of the prior pretrial Faretta hearing and informed Gore about the responsibilities of self- representation. Gore claimed that he understood the court's instructions and proceeded to conduct his own closing argument.

12 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
13 The following discussion took place at sidebar regarding Gore's request of counsel that he be recalled to testify:
DEFENSE COUNSEL: My client wants to take the stand again and I don't believe from what I - because I asked him to tell me what relevant testimony do you have that was not discussed in your prior testimony? He wrote out some questions and whatnot, but gave me nothing relevant. Stupid questions. Why you should find me not guilty and things like that.
THE COURT: Well, if you have no relevant questions to ask him, what would be the point of him taking the stand? He can't take the stand just to make a statement to the jury.
. . . .
If you don't have any questions to ask him, I don't see what we are addressing really.
DEFENSE COUNSEL: I'm just concerned from a constitutional standpoint, if my client's right to testify extends to testifying more than once.
THE COURT: Well, what I'm saying is, I don't think I need to get to that juncture, if you have no further questions of your client. There is no reason for him to take the stand and we don't need to address whether he should be permitted to take the stand again, if you have no questions of him.
. . . .
Well, if you told me that you wanted to recall your client at this point, then we would address whether that would be appropriate. From what I understand you to say, you have no intention of recalling your client at this time because you have nothing further to ask.
DEFENSE COUNSEL: Right.

At the conclusion of the closing arguments, Gore requested that counsel be reappointed for the penalty phase proceedings. Although the trial court initially granted Gore's request, Gore subsequently changed his mind and asked that he be permitted to represent himself during the penalty phase. Gore claimed that he was forced to proceed pro se during the penalty phase because defense counsel failed to secure any mental health experts or fact witnesses to testify on Gore's behalf for purposes of introducing mitigating evidence.

Appointed counsel was given the opportunity to explain to the court why he did not plan to call any experts or fact witnesses, except Gore himself, to present mitigating evidence in the penalty phase. Counsel explained the efforts that he undertook to procure the attendance of penalty phase witnesses. Defense counsel spoke with several of Gore's family members and concluded that it would not be in Gore's best interest to call them as witnesses. According to defense counsel, several of Gore's family members refused to testify for Gore, stating that if subpoenaed to testify, they "would rather be held in contempt of court than testify on [Gore's] behalf." Gore himself informed the trial court that he did not want his sister to testify on his behalf, stating, "This is something that is a problem because my sister would love nothing better than to see me dead because my previous attorneys had my sister arrested and put her in jail and gave her a conviction. Now she is in jail. All my sisters are now against me."

Counsel also explained the tactical reasons for not presenting additional lay witnesses, who Gore claimed were essential. Gore's attorney stated that he had spoken with Ana Fernandez, a witness who Gore claimed could provide mitigating evidence. Fernandez informed counsel that she had "no interest in testifying on [Gore's] behalf." Defense counsel also decided against calling Jessie Casanova as a witness. Counsel informed Gore and the court that he did not think the fact that the twenty-two-year-old Gore was "sleeping with" Casanova when she was thirteen years old would be seen as favorable by the jury. 14

14 After deciding to represent himself during the penalty phase, Gore had Casanova subpoenaed and she did testify for Gore during the penalty phase proceeding. In addition, defense counsel informed the court that he attempted to present expert witnesses to provide mitigating evidence pertaining to Gore's mental health. Gore's attorney tried on several occasions to have Gore reevaluated by Dr. Merry Haber. However, according to counsel, Gore refused to cooperate with Dr. Haber, who twice attempted to visit Gore in jail for purposes of interviewing him for the penalty phase proceeding. Thereafter, Dr. Haber was stricken from the penalty phase witness list after she declined to provide any assistance in Gore's case due to Gore's lack of cooperation. 15 Furthermore, counsel explained that Gore refused to be reexamined by prior experts who had interviewed and examined him in previous criminal proceedings, referring to several of them as "quacks."

15 Doctor Haber did interview Gore on January 15, 1999, prior to the retrial, based upon a court order regarding whether Gore was competent to proceed to trial and to represent himself. Doctor Haber found Gore to be competent to proceed and competent to represent himself. She also found him to be manipulative and seductive, coherent, logical and goal-oriented. She found no evidence of major mental illness. Doctor Haber concluded that the defendant suffered from a personality disorder and was antisocial.

Before permitting Gore to represent himself in the penalty phase, the trial court again advised Gore that he should have counsel and that it would be to his advantage. The court also inquired into Gore's education and experience. Defense counsel reminded the trial court that Gore previously had represented himself for part of the Coralis murder trial and a Faretta hearing was also conducted during Gore's first trial in this case. Gore asserted that he understood the court's instructions regarding the benefits of appointed counsel and the potential perils of self-representation. Ultimately, the trial court permitted Gore to represent himself during the penalty phase and Gore proceeded pro se. 16

16 At the conclusion of the penalty phase proceedings, Gore requested that counsel be reappointed. When questioned by the trial court about his decision to have counsel reappointed, Gore replied, "I wish to represent myself at this point." Gore explained that he wanted to prepare a sentencing memorandum and a motion for a new trial and that he wanted counsel to be reappointed as a precautionary measure, stating that "if it becomes too much of a burden for me to do both motions, then I will have to ask for counsel to come in and take over at that point." From the record, it appears that Gore prepared both motions himself and argued the merits of his motion for a new trial at the Spencer hearing.

As the United States Supreme Court has stated, a defendant has the right to waive court-appointed counsel and choose to represent himself or herself. See Faretta, 422 U.S. at 835. Once a defendant asserts the right of self-representation, the court must conduct an inquiry to determine whether the defendant is competent to make the choice and that the defendant knowingly and intelligently waived the right to counsel. See id.; see, e.g., Waterhouse v. State, 596 So. 2d 1008, 1014 (Fla. 1992). The Faretta Court stated:
Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." 422 U.S. at 835.

Although an accused has a Sixth Amendment right to waive the right to counsel and conduct his or her own defense in a criminal proceeding, see Faretta, 422 U.S. at 820, a defendant's choice between incompetent and unprepared counsel and appearing pro se is "a dilemma of constitutional magnitude." Sanchez v. Mondragon, 858 F.2d 1462, 1465 (10th Cir. 1988), overruled on other grounds by United States v. Allen, 895 F.2d 1577 (10th Cir. 1990). The choice to proceed pro se cannot be constitutionally voluntary if such a dilemma exists. See id. For the waiver to be voluntary, the trial court must have inquired into the reasons for the defendant's dissatisfaction with his counsel. See id. A lawyer's decision, in the exercise of his or her legal judgment, not to pursue a certain line of defense desired by the defendant does not constitute good cause for discharging counsel. See 858 F.2d at 1466. The right to counsel does not require that counsel blindly follow a defendant's instructions. See United States v. Padilla, 819 F.2d 952, 956 (10th Cir. 1987).

Throughout the proceedings below, Gore repeatedly changed his mind regarding whether he wished to be represented by defense counsel or proceed pro se. The trial court was extremely accommodating in granting Gore's requests to represent himself and Gore's subsequent requests to have counsel reappointed. Furthermore, before allowing Gore to proceed pro se, the trial court took the necessary steps to satisfy the dictates of Faretta and Nelson.

Addressing the merits of Gore's claim that his decision to proceed during the penalty phase was involuntary because he was forced to choose between incompetent counsel and appearing pro se, we conclude that Gore has failed to show good cause for dissatisfaction with appointed counsel. Despite Gore's assertions to the contrary, the record reflects that defense counsel spoke with family members and potential lay witnesses, reviewed existing mental health evaluations, and attempted to have Gore reevaluated by mental health experts for purposes of presenting potential mitigating evidence. Gore himself thwarted Dr. Haber's efforts to provide mitigating evidence by refusing to cooperate with her, and Gore also refused to be reexamined by several experts who previously had interviewed and examined him for other criminal proceedings. In addition, after speaking with Gore's family members and lay witnesses about testifying on Gore's behalf, defense counsel concluded that it would not be in Gore's best interest to have these witnesses testify during the penalty phase. In sum, the record reflects that defense counsel took reasonable steps to secure mitigating evidence on behalf of Gore and made strategic decisions in declining to call certain defense witnesses.
Thus, the record does not reflect that Gore was forced to make a Hobson's choice between incompetent or unprepared counsel and appearing pro se. Competent substantial evidence supports the conclusion that Gore's decision to proceed pro se was made with "eyes open." Faretta, 422 U.S. at 835.

D. INEFFECTIVE ASSISTANCE OF PENALTY PHASE COUNSEL

Gore contends that penalty phase counsel rendered ineffective assistance because he failed to secure any mental health testimony or fact witnesses to testify on Gore's behalf. Even assuming that an ineffective assistance of counsel claim could be properly asserted under these circumstances, with rare exception ineffective assistance of counsel claims are not cognizable on direct appeal. See Martinez v. State, 761 So. 2d 1074, 1078 n.2 (Fla. 2000); Lawrence v. State, 691 So. 2d 1068, 1074 (Fla. 1997); Consalvo v. State, 697 So. 2d 805, 811 n.4 (Fla. 1996). A claim of ineffective assistance of counsel may be raised on direct appeal only where the ineffectiveness is apparent on the face of the record. 17 See Martinez, 761 So. 2d at 1078 n.2.

17 Both this Court and several district courts of appeal have reversed cases involving ineffective assistance of counsel claims on direct appeal where counsel's representation has been impaired by conflicting interests. See Foster v. State, 387 So. 2d 344, 345-46 (Fla. 1980); see also Robinson v. State, 702 So. 2d 213, 215-17 (Fla. 1997) (counsel ineffective for not preparing for trial, lying to the jury, offering no evidence in mitigation, and being improperly compensated); Ross v. State, 726 So. 2d 317, 319 (Fla. 2d DCA 1998) (counsel ineffective for failing to object to prosecutor's comments that defense witnesses were "pathetic," "ridiculous," "inappropriate," "insulting," to the jury's intelligence, "totally incredible," and who had "just flat out" lied and failing to object to the prosecutor's characterizations of the defendant's testimony as "preposterous," "nonsense," and "bologna"); Gordon v. State, 469 So. 2d 795, 797 (Fla. 4th DCA 1985) (defense counsel was ineffective for failing to object to 104 instances of improper questions and comments by the prosecutor).

Gore is essentially arguing that he was forced to represent himself because penalty phase counsel declined to call any expert witnesses or any member of Gore's family to present mitigating evidence and that counsel's ineffectiveness is apparent on the face of the record. Despite Gore's assertions, the record reflects that defense counsel acted reasonably in seeking out and evaluating potential mitigating evidence and that counsel made strategic decisions in declining to call certain defense witnesses. Moreover, Gore himself thwarted defense counsel's efforts to secure mitigating evidence by refusing to cooperate with or be examined by several mental health experts. Accordingly, because it is not apparent from the face of the record that counsel was ineffective, we deny relief on this claim.

Accordingly, we affirm the convictions and sentence of death. It is so ordered. WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.

Gore v. State, 24 So. 3d 1 (Fla. 2009). (PCR) (Novick)

PROCEDURAL POSTURE: The Dade County Circuit Court (Florida) denied defendant's Fla. R. Crim. P. 3.851 postconviction relief motion filed in an effort to vacate his judgment of conviction and resulting death sentence after he was found guilty of first-degree murder and armed robbery. Defendant appealed.

OVERVIEW: Defendant was tried and convicted for, inter alia, a woman's first-degree murder, and then sentenced to death. His convictions and sentence were eventually affirmed on direct appeal. He then filed a Fla. R. Crim. P. 3.851 postconviction relief motion. The trial court granted an evidentiary hearing only on his ineffective assistance of counsel claim arising from a Spencer hearing. However, it then ultimately did not hold an evidentiary hearing upon concluding that defendant waived any evidentiary hearing. It thus found his postconviction claims to be meritless. The state supreme court found, inter alia, that (1) substantial evidence supported the trial court's finding that defendant was competent, which was a recurring issue in the case; (2) the record conclusively refuted his allegations that counsel rendered deficient performance prior to defendant's decision to proceed pro se at the penalty phase of the trial; (3) defendant knowingly, intelligently, and voluntarily waived his postconviction ineffective assistance claim and an evidentiary hearing by stating that he was not interested in pursuing it; and (4) defendant's remaining claims did not demonstrate any trial court error.

Appellant, Marshall Lee Gore, was convicted of and sentenced to death for the first-degree murder and armed robbery of Robyn Novick in Dade County, Florida, after his initial conviction and death sentence were overturned. Gore v. State, 784 So. 2d 418, 423 (Fla. 2001). 1 In this appeal, we consider the denial of postconviction relief arising from Gore's motion to vacate his judgment of conviction and sentence of death filed under Florida Rule of Criminal Procedure 3.851. For the reasons set forth in this opinion, we affirm the denial of postconviction relief.

1 Gore's first conviction was reversed and his case remanded for a new trial because of improper questions and comments by the prosecutor during the cross-examination of Gore and during closing argument. Gore v. State, 719 So. 2d 1197, 1202-03 (Fla. 1998).

I. FACTS AND PROCEDURAL HISTORY

The relevant facts regarding the murder of Robyn Novick are set forth in this Court's opinion on Gore's second direct appeal:
Police discovered Novick's nude body in a rural area of Dade County on March 16, 1988. Her body was hidden by a blue tarpaulin-like material. Novick suffered stab wounds to the chest and had a belt tied around her neck. According to the medical examiner, Novick died as a result of the stab wounds and mechanical asphyxia. He estimated that Novick was killed between 9 p.m. and 1 a.m. on March 11 into March 12, 1988.
Novick was last seen alive on March 11, 1988, leaving the parking lot of the Redlands Tavern in her yellow Corvette. A witness testified that Novick left with a man, whom the witness identified as Gore.

In the early morning of March 12, Gore was seen driving Novick's automobile. David Restrepo, a friend of Gore's, testified that Gore arrived at his home driving a yellow Corvette with a license plate reading "Robyn." . . .
. . . .
In its case-in-chief, the State also introduced Williams rule evidence that Gore committed similar crimes against [Susan] Roark and [Tina] Coralis. The State presented evidence that Gore had murdered Roark shortly after her disappearance in January 30, 1988, by inflicting trauma to her neck and chest. In addition, evidence established that Gore stole Roark's black Ford Mustang and other personal property, then left her nude body in a rural area used as a trash dump. Similarly, the State presented evidence that Gore attacked Coralis on March 14, 1988, two days after the murder of Novick. Coralis herself testified against Gore, stating that he beat her with a rock, raped, choked and stabbed her, and left her for dead on the side of the road near the scene where Novick's body was found. Gore proceeded to steal Coralis's red Toyota sports car and personal property.

FBI agents finally arrested Gore in Paducah, Kentucky on March 17, 1988. At the time of his arrest, Gore was in possession of Coralis's red Toyota automobile and he had her bank and credit cards in the pocket of his jacket. Police officers subsequently questioned Gore regarding the Coralis and Roark crimes. According to the police, Gore denied knowing Roark or Coralis and denied all involvement in the crimes. Gore also denied knowing Novick. When police prepared to show Gore a photograph of Novick, Gore stated "just make sure it is not gory" because his "stomach could not take it." At the time that Gore made such statements, the police had yet to inform Gore that Novick was dead. Detective David Simmons of the Miami Dade Police Department testified that when Gore looked at Novick's picture, Gore's eyes "swelled with tears." Gore also stated that "if I did this, I deserve the death penalty."

In his defense, Gore took the stand and testified on his own behalf. Gore claimed that prior to his interrogation by police in Miami concerning the Novick murder, reporters previously had told him upon his arrest that Novick was dead. He also claimed that during his interrogation, police had placed gruesome photographs of the murders all over the interview room. Moreover, Gore stated that police had given him a polygraph examination, which he claimed he had passed.
Gore testified that he was the owner of an escort service and claimed that Coralis, Novick, Roark, and Restrepo all worked for the escort business. Gore maintained that Novick worked for him as a nude dancer and he admitted that he was with Novick at the Redlands Tavern on the evening of March 11, 1988. Gore, however, denied killing her. . . .
. . . .
On cross-examination, Gore admitted that he previously had been convicted of committing fifteen felonies. Gore denied trying to kill Coralis and claimed that her injuries were the result of her jumping out of a moving car. Gore also asserted that all of the State witnesses had lied and he refused to explain why he was in possession of the property of people who were either killed or attacked.

Ana Fernandez testified on Gore's behalf. Fernandez worked for Gore in 1984 or 1985 when she was fifteen years old, answering phones for the escort service. Fernandez claimed to have known Roark, Coralis, and Novick through her association with Gore. However, she could not state when, where, or how many times that she had met Coralis or Novick and was unable to describe them. Moreover, when presented with a photograph of several women, she could not identify Coralis.

After the close of all the evidence, the jury convicted Gore of first-degree murder and armed robbery with a deadly weapon of Novick. During the penalty phase, Gore chose to represent himself. 2 The jury recommended that Gore be sentenced to death by a vote of twelve to zero. The trial court imposed the death penalty for the first-degree murder conviction 3 and imposed an upward departure life sentence for the armed robbery conviction to run consecutive to any other sentence Gore was serving. [N.2] Williams v. State, 110 So. 2d 654 (Fla. 1959).
784 So. 2d at 423-26 (footnotes omitted).

2 Counsel was subsequently reappointed for the Spencer hearing. See Spencer v. State, 615 So. 2d 688 (Fla. 1993) (allowing for a hearing at which the trial judge may be presented with additional evidence).
3 The trial court found the following aggravating factors:
(1) Gore was previously convicted of another capital felony involving the use or threat of violence to the person; (2) the capital felony was committed while Gore was engaged in the commission of, or an attempt to commit, or in flight after committing or attempting to commit any robbery; and (3) the capital felony was committed in a cold, calculated and premeditated manner without any pretense of legal justification ("CCP").
Gore, 784 So. 2d at 426 (footnote omitted). As to mitigation, the court found no statutory mitigation but found the following nonstatutory mitigating factors: "(1) Gore suffered hearing loss (minimal weight); (2) Gore suffered from migraine headaches (minimal weight); and (3) Gore had previously stopped an altercation between Raul and Marisol Coto (minimal weight)." Id.

Gore filed his second direct appeal, raising eight claims. 4 The Court affirmed Gore's convictions and sentence, id. at 438, after which Gore filed this current motion for postconviction relief. In his rule 3.851 motion, Gore alleged ten claims. 5 Following a Huff 6 hearing, the trial court granted an evidentiary hearing on claim four only--Gore's ineffective assistance of counsel claim arising from the Spencer hearing--and summarily denied Gore's remaining claims. 7 However, the trial court ultimately did not hold an evidentiary hearing on this single claim based on its determination that Gore, by his actions, waived any evidentiary hearing. The trial court thus denied Gore's motion for postconviction relief, concluding that all of the claims raised were without merit. Gore appeals the denial of his postconviction motion to this Court and raises several issues for this Court's review. 8

4 Gore argued the following points:
(1) the Double Jeopardy Clause of the United States and Florida Constitutions prevented the State from retrying Gore for first-degree murder and armed robbery; (2) the trial court erred in denying his motion for a mistrial following the State's questioning of Jessie Casanova about whether she had an "intimate relationship" with Gore; (3) the trial court erred in denying Gore's motion for a judgment of acquittal on charges of first-degree murder and armed robbery; (4) the trial court abused its discretion in excluding reverse Williams rule evidence pertaining to the murder of Paulette Johnson, which allegedly supported Gore's hypothesis of innocence; (5) the State introduced improper collateral crime evidence during the penalty phase; (6) the trial court erred in finding and weighing the CCP aggravating circumstance; (7) the trial court erred in permitting Gore to represent himself during the guilt phase closing argument and during the penalty phase of trial; and (8) Gore received ineffective assistance of counsel during the penalty phase.
Id. at 426 n.6.

5 Gore alleged as follows: (1) he was denied his right to effective representation by the lack of time available to fully investigate and prepare his postconviction pleading and the unprecedented workload on counsel, in violation of his Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution and in violation of Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988); (2) his convictions are materially unreliable due to the cumulative effects of ineffective assistance of counsel, the withholding of exculpatory or impeaching material, newly discovered evidence, and/or improper rulings of the trial court in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights; (3) he was denied his rights under Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), at his trial when counsel failed to obtain an adequate mental health evaluation and failed to provide the necessary background information to the mental health consultant in violation of Gore's equal protection and due process rights under the Fourteenth Amendment and his rights under the Fifth, Sixth and Eighth Amendments; (4) he was denied effective assistance of counsel at the penalty phase portion of his trial, including the Spencer hearing; (5) his execution would violate his Eighth Amendment rights because he is insane and his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments were violated because he was incompetent at the time of trial; (6) his sentencing jury was misled by comments, questions, and instructions that unconstitutionally and inaccurately diluted the jury's sense of responsibility towards sentencing in violation of the Eighth and Fourteenth Amendments and counsel was ineffective for not properly objecting; (7) he was denied his rights under the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and his rights under the Florida Constitution and was denied effective assistance of counsel in the postconviction proceedings because of rules prohibiting Gore's counsel from interviewing jurors to determine if constitutional error was present; (8) Florida's capital sentencing procedures violate Gore's Sixth Amendment right to have a unanimous jury return a verdict addressing his guilt of all the elements necessary for the crime of capital first-degree murder; (9) the application of the new rule 3.851 to Gore violates his due process and equal protection rights; and (10) his indictment was delayed by almost two years in violation of the Fourteenth Amendment.

6 Huff v. State, 622 So. 2d 982 (Fla. 1993).
7 As to Gore's other claims concerning ineffective assistance of counsel at the penalty phase, the court stated: "[T]he defendant having chosen to represent himself during the penalty phase before the jury cannot now claim ineffective assistance of counsel as to the evidence that was presented before the jury."
8 These issues are: (A) Gore was incompetent at the time of his trial and postconviction proceedings; (B) the trial court erred in finding that Gore waived his allegations of ineffective assistance of counsel during sentencing and the trial court erred in finding that Gore voluntarily waived an evidentiary hearing on his claim of ineffective assistance during the Spencer hearing; (C) the trial court erred in refusing to allow postconviction counsel complete and unfettered access to available public records or sufficient time for a full investigation into the records made available; (D) the trial court erred in failing to conduct a cumulative error analysis that fully considered Gore's allegations of constitutional error; (E) the trial court erred in striking Gore's initial postconviction motion without permitting him leave to amend; and (F) the trial court's summary denial of claims I, II, III, V, VI, IX and X was error; Florida's capital sentencing procedures violate Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); and Gore cannot be executed because he is insane. We have reordered the above issues from the brief in the order in which we will address them.

II. ANALYSIS
A. Competency at Trial and Postconviction Proceedings

We begin with an examination of the issue of Gore's competency. We start with the issue of competency because Gore's mental status has been a recurrent theme throughout the trial, direct appeal, and postconviction proceedings in this case as well as in the proceedings concerning the first-degree murder of Susan Roark in Columbia County, in which Gore was also sentenced to death and in which the issue of Gore's competency to proceed was also raised. See Gore v. State, 846 So. 2d 461 (Fla. 2003) (affirming denial of postconviction relief and denying petition for habeas corpus in Roark conviction); Gore v. State, 599 So. 2d 978 (Fla. 1992) (affirming conviction and sentence for murder of Roark) (hereafter referred to as "the Columbia County case"). 9 While Gore's current counsel asserts that Gore is "mentally deranged," the trial judges who have evaluated this issue have concluded that, rather than being incompetent or seriously mentally ill, Gore has intentionally manipulated and attempted to obstruct the ongoing proceedings against him. The question of whether Gore's actions are the product of a serious mental illness or the result of purposeful manipulation is best analyzed by a thorough review of the record in this case and the Columbia County case. 10

9 Although postconviction relief was denied and that denial affirmed, Gore brought a successive postconviction motion pursuant to Florida Rule of Criminal Procedure 3.853 for DNA testing. That motion was summarily denied and is pending on appeal in this Court in Case No. SC07-678.
10 The issue of whether Gore has intentionally manipulated the proceedings was the subject of an earlier case in which Gore was convicted of attempted murder, kidnapping, sexual battery, burglary, robbery, and theft. See Gore v. State, 573 So. 2d 87, 88 (Fla. 3d DCA 1991). There, Gore filed a motion to exclude electronic media from the courtroom. Several months prior to the trial, a psychologist diagnosed Gore with attention deficit disorder and a severe personality disorder and concluded that the presence of television cameras would distract Gore. After the psychologist's testimony was presented at an evidentiary hearing, the court found Gore competent to testify and denied the motion. When Gore took the stand and stated he was "not going to be able to do this," the court appointed three doctors to examine Gore and determine whether the presence of the cameras truly was affecting Gore's ability to participate in the trial. Notably, the first psychiatrist that testified stated that "Gore did not suffer from any major illness, was manipulative, and was simply 'making an issue' of the presence of the camera." Id. The trial court ultimately denied the motion to exclude. Id.

Gore's claims of incompetency arise from both his trial and postconviction proceedings. As to his trial-related claims, Gore asserts the following: (1) the trial court erred in finding that he was competent to proceed to trial; (2) his trial counsel was ineffective in advocating his incompetency claims; and (3) the trial court erred in failing to instruct the jury on the extreme mental disturbance mitigator.
As to his postconviction-related claims, Gore alleges that the trial court erred in finding that he was competent at the time of the postconviction proceedings and he claims that he is possibly incompetent and/or insane at present. To provide context to these claims, we will first provide a history of the competency proceedings in Gore's case and then analyze his postconviction and trial-related incompetency claims.

1. History of Competency Proceedings
a. Competency in Columbia County Collateral Proceedings

We turn first to the Columbia County case because the proceedings in that case gave rise to some of the trial court's decisions regarding competency in this case. In 1998, after the filing of Gore's rule 3.851 motion in the Columbia County case involving the murder of Susan Roark, counsel in that case filed a motion to determine Gore's competency to proceed. In the motion, counsel stated that Gore had "no present ability to consult with and communicate with postconviction counsel regarding factual matters at issue in his postconviction proceedings." In the absence of the State's objection to the examination, the court appointed two experts to evaluate Gore's competency, Dr. Richard Greer and Dr. Umesh Mhatre, who concluded that Gore was competent to proceed. At the competency hearing, Gore had the opportunity to cross-examine these experts and also presented testimony from Dr. Harry McClaren and Dr. Terence Leland, both of whom found Gore to be incompetent.

In finding that Gore was competent to proceed in the postconviction proceedings, the court noted that two of the doctors had found Gore to be controlling and manipulative. Moreover, the court stated:
Mr. Gore is also a notoriously difficult client. There is, however, no right to a meaningful attorney-client relationship, when the client's conduct prevents a meaningful relationship. Morris v. Slappy, 461 U.S. 1, 13, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983). Based on this Court's observations of Gore, both during his trial and over the last several years of these postconviction proceedings and the reports and testimony of the experts, the Court finds that Gore's current dislike of and refusal to cooperate with collateral counsel are not the result of a delusional disorder. Instead, such behavior is consistent with Gore's personality disorder.
The Court finds that the greater weight of the evidence supports the conclusions that Gore has both a rational and factual understanding of these proceedings and that he has the ability to consult with counsel if he chooses to do so.

b. Competency Evaluation at Retrial in Novick Case

On January 14, 1999, prior to the retrial in this case, defense counsel received a letter stating that Gore had previously been found to be incompetent by two experts in the Columbia County case. When counsel raised the issue before the court, the court sua sponte appointed Dr. Merry Haber to conduct Gore's evaluation "to make sure [Gore was] okay and still competent." Counsel then formally requested that the trial court have Dr. Haber perform an evaluation. The parties stipulated that the defense would not request a second evaluation unless Dr. Haber concluded Gore was incompetent.

On January 15, 1999, Dr. Haber conducted a one-hour competency evaluation of Gore. In addition, Dr. Haber reviewed the reports of the four experts who examined Gore in the Columbia County proceedings. In her report, Dr. Haber opined that Gore "was cooperative, but also manipulative and seductive." She also stated that his "thought processes were coherent, logical, and productive" although he would become "overproductive" in explaining his situation. Dr. Haber believed that Gore's thought processes were "goal-oriented with no loosening of associations." She found no evidence of delusional activity, depression, significant anxiety, or any major mental illness. She ultimately concluded that Gore was competent to proceed with his trial. 11 The issue of Gore's competency was not raised on appeal from the retrial.

11 The record also indicates that the trial court appointed Dr. Haber on February 10, 1999, to examine Gore's competency for the penalty phase.

c. Competency at Postconviction Proceedings in Novick Case

In this current postconviction proceeding, Gore filed a motion to determine his competency to proceed in the collateral proceedings. At a subsequent hearing, the State agreed to a competency hearing. Ultimately, the court appointed three experts to evaluate Gore: Dr. Lynne Alison McInnes, Dr. Enrique Suarez, and Dr. Sonia Ruiz.
At the competency hearing, the defense presented the testimony of Dr. McInnes, a psychiatrist, who conducted a five-hour interview of Gore. She opined that Gore had loosening of association, displayed incoherence, paranoia, and delusional thoughts, and was suspicious of counsel. Dr. McInnes did not administer the Minnesota Multiphasic Personality Inventory (MMPI) test to Gore, a test which evaluates personality and "characterological" traits, because she did not believe it would be of assistance to the issue of his competency. Gore denied that he had psychiatric symptoms, but Dr. McInnes testified that it was very difficult to fake a thought disorder and therefore she did not believe that Gore was malingering. She also did not believe that Gore was capable of conveying consistent information or understanding the facts at hand. Thus, she concluded that Gore was incompetent. On cross-examination, Dr. McInnes stated that Gore had indicated that he had suffered some head trauma but she also conceded that there was a possibility that Gore was attempting to produce symptoms to influence the outcome of his case and that she suspected that Gore was manipulative. She also stated that she did not review Gore's prior evaluations.

The State presented the testimony of Dr. Suarez, a psychologist who performed Gore's evaluation, and Dr. Ruiz, a clinical psychologist. Dr. Suarez testified that Gore was compulsive and had a tendency to obsess. Gore informed Dr. Suarez that he had a number of different head injuries and had experimented with drugs before prison. However, based on Gore's interactions with his attorney, who was present during the evaluation, the doctor believed that Gore had the ability to respond to any question that was asked of him. Dr. Suarez also did not see any signs of Gore being psychotic or delusional. Dr. Suarez administered the MMPI, which showed "answers that are known to reflect or be indicative of certain psychological condition or show abnormality." However, the test results were invalid, which Dr. Suarez opined could have been the result of exaggeration. Ultimately, Dr. Suarez found Gore to be competent. On cross-examination, Dr. Suarez conceded that the MMPI results did not necessarily correlate to an individual's competency.

Dr. Ruiz described Gore as very coherent and intelligent. She stated that Gore was sometimes unresponsive to questions, but she deemed that behavior to be purposeful, occurring when he did not wish to discuss certain topics. She also stated that Gore did not have any loosening of associations but was a highly verbal individual. She opined that Gore obsesses with details but that he was not psychotic, out of contact with reality, or mentally retarded, and showed no evidence of a thought disorder or major mental disorder. She concluded that "[Gore] is very capable of consulting with counsel in a reasonable manner and very capable of testifying if he choosing [sic] to do so."

Gore himself questioned Dr. Ruiz and asked her if the loosening of associations could exhibit itself on some days but not on others due to the stress on an individual, and she agreed it was a possibility. 12 When Gore continued to question her, Dr. Ruiz also stated it was possible that an individual under stress could provide incorrect answers to questions.

12 The trial court granted Gore's request to question Dr. Ruiz after the State and Gore's counsel completed their examinations.

After hearing testimony from the doctors and arguments from counsel, the court stated:
I do find Mr. Gore to be competent. . . . Maybe more competent than a lot of people that appear before me, some of the lawyers included. I find him to be bright, intelligent, he has good contact with reality. He has no communication difficulty. He certainly does not in front of me or with the doctors, at least Dr. Ruiz and Suarez, have any difficulty with rambling or loosening association. I just observed here that he was able to ask a mental health expert a very good question and follow it through the answer to another follow-up question. I thought he did very well there.
Further, when questioned by the court on whether he felt competent to proceed, Gore stated, "I'm absolutely competent. I'm absolutely lucid."

2. Standard for Competency

Under the Due Process Clause of the Fourteenth Amendment, a defendant may not be tried and convicted of a crime if he is not competent to stand trial. See Amend. XIV, § 1, U.S. Const. In order to determine whether a defendant is competent to proceed at trial or in postconviction proceedings, the court must discern whether he "has sufficient present ability to consult with counsel with a reasonable degree of rational understanding--and whether he has a rational as well as a factual understanding of the pending . . . proceedings." Alston v. State, 894 So. 2d 46, 54 (Fla. 2004) (quoting Hardy v. State, 716 So. 2d 761, 763 (Fla. 1998) (applying competency criteria to collateral proceedings)); see Peede v. State, 955 So. 2d 480, 488 (Fla. 2007) (holding that the trial court must decide whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him") (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)); see also Fla. R. Crim. P. 3.211(a)(1) (setting forth the same test).

Moreover, when analyzing a competency determination on appeal, this Court applies the competent, substantial evidence standard of review to the trial court's findings. In other words, a trial court's determination of competency supported by competent, substantial evidence will not be disturbed on appeal. See Hernandez-Alberto v. State, 889 So. 2d 721, 727-28 (Fla. 2004).

3. Analysis of Postconviction and Trial-Related Competency Claims

Applying this standard and based on the evidence presented to the postconviction court on the issue of Gore's competency, we conclude that competent, substantial evidence supports the postconviction court's finding that Gore was competent to proceed. Although the court heard testimony from Dr. McInnes that Gore was incompetent, the court also heard conflicting evidence from Dr. Ruiz and Dr. Suarez that Gore was competent. The trial court also observed Gore's behavior first-hand and had the benefit of the record from the prior competency proceedings at trial in this case, as well as the Columbia County case. Because the court's competency determination is supported by the testimony from Dr. Ruiz and Dr. Suarez, the court's own observations of Gore's behavior, and the prior proceedings in the Columbia County case, the court did not err in finding Gore competent to proceed in his postconviction proceedings.

We also reject Gore's competency claims arising from his retrial. We first note that Gore's claims alleging that he was incompetent at the time of trial and that the trial court erred in removing the extreme mental disturbance mitigator from the jury instructions are procedurally barred because they could have been raised on direct appeal. See Carroll v. State, 815 So. 2d 601, 610 (Fla. 2002) (rejecting as procedurally barred the postconviction claim that defendant was incompetent to stand trial); see also Farina v. State, 937 So. 2d 612, 625 n.7 (Fla. 2006) (argument that age mitigator should be reweighed was procedurally barred as it should have been raised on direct appeal).

As to Gore's claim that counsel rendered ineffective assistance at his trial in his failure to "advocate the issue of his competency," we find no merit in this claim. Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), this Court held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citations omitted). In this case, the trial court summarily denied this claim without an evidentiary hearing, concluding it was insufficiently pled. In determining whether the trial court's ruling on the facial sufficiency of this claim was proper, this Court must apply Strickland's two-pronged test. Spera v. State, 971 So. 2d 754, 758 (Fla. 2007).

Because Gore received a competency evaluation at his trial, this claim is unlike other cases where the defendant alleged that counsel was ineffective in failing to request a competency evaluation. See Lamarca v. State, 931 So. 2d 838, 847-48 (Fla. 2006). Instead, Gore argues that counsel failed to further develop the information that Gore had previously been found incompetent by two experts in another case. However, this claim of deficient performance is conclusively refuted by the record in that the record shows that trial counsel brought the fact of the prior experts' conclusions to the attention of the trial court, who immediately ordered an additional competency evaluation. Subsequently, in an abundance of caution, counsel formally requested that the trial court read the transcript from the Columbia County case, review the earlier reports on Gore's competency, and order another competency evaluation.

As to the second prong of prejudice, there is simply no basis to conclude that our confidence in the outcome of the competency proceedings at trial, and ultimately confidence in the trial proceedings, is undermined. This is especially true in light of Gore having been found competent by every trial court that has held a hearing on this issue, including determinations that were made after the extensive proceedings in Columbia County and after the proceedings by the trial court in these postconviction proceedings. Therefore, we conclude that Gore's claim of ineffective assistance of counsel in failing to "advocate" the issue of competency is without merit.

We next turn to Gore's assertion that the trial court erred in summarily denying his ineffective assistance of counsel claim based on its finding that Gore had waived the claim by representing himself at the penalty phase before counsel was reappointed for the Spencer hearing. We combine our discussion of this issue with the discussion of Gore's claim of error in the trial court's ruling that he had voluntarily waived an evidentiary hearing that was granted on his claim that counsel provided ineffective assistance at his Spencer hearing.

1. Summary Denial of Ineffective Assistance Claim

We first address Gore's claim that the trial court erred in summarily denying his ineffective assistance of counsel claim. We have repeatedly required that an evidentiary hearing be held "whenever the movant makes a facially sufficient claim that requires a factual determination." See Owen v. State, 986 So. 2d 534, 543 (Fla. 2008). However, "[p]ostconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record." Id. at 543 (quoting Connor v. State, 979 So. 2d 852, 868 (Fla. 2007)).
The essence of Gore's ineffective assistance claim is twofold. First, Gore alleges that an evidentiary hearing was required to determine whether his decision to proceed pro se at the penalty phase was voluntary or forced by counsel's lack of preparation. Second, Gore argues that even if he had voluntarily dismissed counsel, this factor does not negate counsel's failure "to prepare mitigation or obtain adequate mental health evaluations."

On direct appeal, we rejected Gore's claim that his decision to represent himself was not knowing and voluntary:
[W]e conclude that Gore has failed to show good cause for dissatisfaction with appointed counsel. Despite Gore's assertions to the contrary, the record reflects that defense counsel spoke with family members and potential lay witnesses, reviewed existing mental health evaluations, and attempted to have Gore reevaluated by mental health experts for purposes of presenting potential mitigating evidence. Gore himself thwarted Dr. Haber's efforts to provide mitigating evidence by refusing to cooperate with her, and Gore also refused to be reexamined by several experts who previously had interviewed and examined him for other criminal proceedings. In addition, after speaking with Gore's family members and lay witnesses about testifying on Gore's behalf, defense counsel concluded that it would not be in Gore's best interest to have these witnesses testify during the penalty phase. In sum, the record reflects that defense counsel took reasonable steps to secure mitigating evidence on behalf of Gore and made strategic decisions in declining to call certain defense witnesses.
Thus, the record does not reflect that Gore was forced to make a Hobson's choice between incompetent or unprepared counsel and appearing pro se. Competent substantial evidence supports the conclusion that Gore's decision to proceed pro se was made with "eyes open."
Gore, 784 So. 2d at 437 (emphasis added).

Although we rejected Gore's argument that Gore's decision to represent himself was not voluntary, we did not address Gore's claim that counsel rendered ineffective assistance prior to his discharge because he failed to secure any mental health testimony or fact witnesses to testify on Gore's behalf. This aspect of his argument, which amounts to a claim of ineffective assistance of counsel at the penalty phase, was raised but not addressed on direct appeal. See Gore, 784 So. 2d at 436. 13 While we note that Gore's ineffective assistance of penalty phase counsel claim is cognizable in postconviction proceedings, in this case the claim is extremely limited because Gore chose to represent himself. Moreover, we reject Gore's claim that counsel was deficient in failing to prepare mitigation and obtain mental health evaluations because it is conclusively refuted by the record. See Blackwood v. State, 946 So. 2d 960, 966-67 (Fla. 2006) (upholding summary denial of defendant's ineffective assistance claims conclusively refuted by the record).

13 Gore's ineffective assistance claim also extends to counsel's representation of Gore at the Spencer hearing, which we address later in this opinion.

Contrary to Gore's assertions about counsel's deficient performance, our record reflects that in preparation for the penalty phase, trial counsel filed the defense witness list on March 4, 1999, which included the names of seven witnesses. At the March 9, 1999, status hearing, counsel removed the names of two of Gore's family members because counsel concluded that they would not be favorable witnesses. Counsel also removed Dr. Merry Haber from the witness list, after informing the court that Gore refused to meet with her during their scheduled appointments. Then, on March 10, 1999, counsel filed a memo listing three psychologists who had formerly evaluated Gore, who either did not have the time or did not wish to testify on Gore's behalf. At the status hearing that same day, Gore informed the court that he wished to represent himself at the penalty phase. He explained:
Mr. Pena [counsel] advised me when I got into this courtroom he was not calling any witnesses at all. He was not going to put on any kind of defense, except me. . . . That was going to be the whole thing.

. . . I was told that Ana Fernandez and Jessie Casanova and other people were going to be witnesses here and now, all of a sudden, they are doing it to me again. They done it to me at the first part of this trial . . . last minute, seventh hour they are not [sic] witnesses . . . .
After conducting a thorough colloquy, the court agreed to allow Gore to represent himself during the sentencing hearing. In response, counsel stated to the court that most of the witnesses on the list, including Ms. Fernandez, no longer wished to testify on Gore's behalf. He also stated that unfavorable evidence would be introduced through the testimony of Ms. Casanova, and therefore declined to present her testimony at the sentencing hearing.
Gore also asserted to the postconviction court that there were "numerous others willing to testify on Mr. Gore's behalf and who were never called to do so," including mental health experts Dr. Lee Norton and Dr. Barry Crown. However, in the memo filed on March 10, counsel stated that Dr. Norton found Gore to be difficult and "would not testify in this case under any circumstances." The letter further stated that Dr. Crown "found [Gore] to be manipulative and self serving" and would not "give testimony which would affect his credibility as a professional."

As demonstrated by the above, the record conclusively refutes Gore's claim that counsel's decision not to present witnesses at the penalty phase was prompted by a lack of preparation. Counsel attempted to obtain the testimony of family members and mental health experts. However, the majority of the witnesses were unwilling to testify in Gore's case. Based on the record of counsel's actions at the trial court proceedings before counsel was discharged, we conclude that further factual development of this claim at a hearing was not required. Further, Gore has been unable to point to any other available witness that counsel could have or should have presented at trial so as to undermine our confidence in the outcome of the penalty phase. Thus, we uphold the summary denial on the basis that the record conclusively refutes Gore's allegations that counsel rendered deficient performance prior to Gore's decision to proceed pro se and that the record conclusively refutes any possible prejudice.

2. Waiver of Evidentiary Hearing

We now turn to Gore's claim that the trial court erred in finding that Gore voluntarily waived his evidentiary hearing on his ineffective assistance claim rising from the Spencer hearing. Although Gore represented himself during the penalty phase, counsel was subsequently reappointed to represent Gore, but did not present any evidence at the Spencer hearing. In its order denying postconviction relief on Gore's ineffective assistance claim arising from the Spencer hearing, the trial court stated:
1. Defendant has a right to control the conduct of his case, and is therefore entitled to determine that no witnesses be called at the evidentiary hearing against his counsel's wishes. 2. Defendant has the burden of proof in this post conviction hearing and cannot carry that burden of proof without the presentation of witnesses. 3. By refusing to allow the presentation of evidence at the evidentiary hearing, Defendant has waived his claim that counsel was ineffective for failing to investigate and present mitigation at the Spencer hearing. Because Defendant has waived this claim, it is hereby, denied.
(Citations omitted.)

As to determining whether the trial court erred in finding that Gore waived the only postcoAs to determining whether the trial court erred in finding that Gore waived the only postconviction claim that was granted an evidentiary hearing, we have held that a valid waiver of postconviction penalty phase claims must be "knowing, intelligent, and voluntarynviction claim that was granted an evidentiary hearing, we have held that a valid waiver of postconviction penalty phase claims must be "knowing, intelligent, and voluntary." Garcia v. State, 949 So. 2d 980, 986 (Fla. 2006) (quoting Alston v. State, 894 So. 2d 46, 57 (Fla. 2004)). We have carefully reviewed the record and conclude that Gore's statements at the hearing met this threshold. It is clear from the record that Gore did not want to have an evidentiary hearing on his penalty phase ineffective assistance claim. The State attempted to inform Gore of the consequences of failing to meet his burden of proof. 14 However, Gore declared that he did not "care" about the evidentiary hearing, but was concerned solely with proving his innocence. 15

14 It appears that the State attempted to inform Gore and the court that the failure to present witnesses could result in a failure to meet the burden of proof and waiver of postconviction claims. The State's comment was cut off by the trial judge but Gore failed to ask for clarification. Instead, he reiterated his refusal to participate.
15 As evidenced in his competency evaluation by Dr. Leland, Gore made similar demands in the Columbia County case, stating that he would not cooperate with sentencing phase issues, but would only assist with his "innocence claims."

As this Court stated in Ferrell v. State, 918 So. 2d 163 (Fla. 2005), "Ferrell's claim of ineffective assistance based on the failure of trial counsel to seek the expert assistance of a social worker is a fact-based issue that required development at an evidentiary hearing . . . . However, Ferrell 'opted to forego' the presentation of such evidence at the scheduled evidentiary hearing and thus waived the claim." Id. at 173-74 (citation omitted). Likewise, Gore's decision here to "forego" the presentation of evidence at the evidentiary hearing on his Spencer claim waived consideration of this claim on appeal. Because the scheduled evidentiary hearing was granted only as to Gore's penalty phase ineffective assistance claim and Gore was not interested in pursuing his penalty phase claims, we conclude that the trial court did not err in finding that Gore knowingly, intelligently, and voluntarily waived his evidentiary hearing and this postconviction claim. 16

16 Gore also argues that the court failed to hold a hearing pursuant to Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), or Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), and ignored evidence that Gore wished to proceed with substitute counsel. We reject Gore's claim of error concerning a Faretta inquiry because Gore failed to make an unequivocal request to represent himself and we conclude that in this case there was no reversible error as to Gore's claim regarding the Nelson hearing.
Even if the trial court erred in its finding that Gore waived an evidentiary hearing on this claim, we conclude that no prejudice can be demonstrated. See generally Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001) ("[B]ecause the Strickland standard requires establishment of both prongs, when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong."). Similar to our previous discussion of Gore's ineffective assistance of counsel at the penalty phase, Gore has not been able to point to any other available witness that counsel should have presented at the Spencer hearing that would undermine our confidence in the outcome of his penalty phase. Thus, we find Gore's claim of error concerning his Spencer hearing claim to be meritless.

C. Access to Records

We next address Gore's assertion that the trial court erred in refusing to allow complete and unfettered access to available records. Further, Gore contends that the court did not allow counsel adequate time to review the records that were eventually made available to counsel. Gore's complaint stems from the trial court's ruling on postconviction counsel's motion to compel Frank Tassone, postconviction counsel in the Columbia County case, 17 to allow counsel access to approximately eighty boxes of records. 18 Tassone refused counsel's request to review the files, based on Gore's direction that counsel should not have access because of a conflict of interest. The court ultimately ruled that counsel could have access to the fifty-nine boxes of materials to which Gore agreed, but allowed counsel only limited time to review the records.

17 Gore's original postconviction counsel in the Columbia County case and in the instant case was attorney Raymond Glenn Arnold. However, based on Gore's filing of complaints against Arnold, Arnold moved to withdraw from representing Gore in the Columbia County case on October 18, 2001, and the instant case on November 13, 2001. Tassone was subsequently appointed as counsel in the Columbia County case.
18 It is not clear from the record whether the boxes of materials were solely from the Columbia County proceeding, solely from the instant case, or a mixture of the two. Regardless of which proceeding(s) the boxes were from, our analysis remains the same based on the facts of this case.

We conclude that in this case, the trial court did not err in its ruling and any inability of current counsel to obtain the records was due primarily to Gore's own actions in refusing his counsel access. Because Gore himself denied his counsel access to the records and is now complaining that counsel did not have enough time to review the records ultimately made available, this claim also highlights what can most aptly be characterized as an attempt to manipulate the system. Importantly, counsel, who eventually received the majority of the records, is unable to point to a single document contained in the formerly undisclosed record that might have been even marginally useful to the issues he sought to litigate in postconviction proceedings. Accordingly, we deny relief on this claim.

D. Cumulative Error

Gore also contends that the trial court erred in failing to conduct a cumulative analysis of the errors that rendered the result of his trial unreliable. However, because Gore's individual claims of error are without merit, any cumulative error analysis would be futile. Therefore, we reject this claim of trial court error. See Williams v. State, 987 So. 2d 1, 14 (Fla. 2008) ("Where allegations of individual error are without merit . . . a cumulative error argument based thereupon must also fail.").

In his next claim on appeal, Gore asserts that the trial court erred in striking his initial motion for postconviction relief without leave to amend. On June 18, 2002, Gore filed his initial motion for postconviction relief, which was stricken by the trial court as an improper pleading based on rule 3.851. Gore appealed the trial court's ruling, which was treated by this Court as a motion for extension of time. In a March 10, 2003, order entered by this Court, Gore was granted an extension of time in which to file a proper motion pursuant to rule 3.851. Gore now appeals the trial court's initial ruling, stating that the arbitrary application of rule 3.851 violates his due process and equal protection rights and that the trial court's refusal to grant him leave to amend his motion has jeopardized his federal remedies. 19 Further, Gore argues that he was merely relying on the advice of counsel in filing the improper motion.

19 According to 28 U.S.C. § 2244 (2006), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal petition for writ of habeas corpus must be filed within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A) (2006). However, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2) (2006).

To the extent that Gore is alleging that rule 3.851 is unconstitutional as applied to him, this claim is without merit. See Gonzalez v. State, 990 So. 2d 1017, 1034 (Fla. 2008) ("[R]ule 3.851 as amended in 2001 does not violate a defendant's due process rights or equal protection rights."). Moreover, we find that Gore's claim that he authorized the filing of the improper motion based on the advice of counsel is in effect a claim of ineffective assistance of postconviction counsel, and thus is also without merit. See Waterhouse, 792 So. 2d at 1193 (reaffirming the conclusion that ineffective assistance of postconviction counsel is not a cognizable claim for relief).

Finally, although the trial court did not err in striking Gore's motion without leave to amend, we conclude that because this Court granted an extension of time pursuant to rule 3.851(d)(5) in which to file an amended motion, Gore's amended motion in this case relates back to the date of the initial motion filed on June 18, 2002. See generally Bryant v. State, 901 So. 2d 810, 818 (Fla. 2005) (noting that when an initial motion is stricken with leave to amend, a subsequent amended motion relates back to the date of the original filing). Accordingly, although the trial court did not err in its ruling, in our view this Court's order granting an extension of time in which to file an amended motion rendered Gore's motion timely for purposes of federal review.

F. Remaining Claims of Trial Court Error

We affirm the trial court's ruling on Gore's remaining claims without further discussion: the trial court's summary denial of several of Gore's postconviction claims because Gore's claims are either procedurally barred, conclusively refuted by the record, or facially or legally insufficient; the court's rejection of Gore's Ring claim because we have repeatedly held that Ring is not retroactive, see Overton v. State, 976 So. 2d 536, 567 (Fla. 2007); and the court's denial of Gore's claim that he is insane and cannot be executed because we have held such claims to be premature in the absence of an active death warrant. See Jones v. State, 845 So. 2d 55, 74 (Fla. 2003).

III. CONCLUSION

Based on our examination of the issues raised by Gore on appeal, we affirm the trial court's denial of Gore's motion for postconviction relief. It is so ordered. PERRY, J., did not participate.

PROCEDURAL POSTURE: Defendant was convicted and sentenced to death in Florida state court for first-degree murder and armed robbery. Petitioner filed a federal habeas petition under 28 U.S.C.S. § 2254, raising a Ford claim. The U.S. District Court for the Southern District of Florida dismissed the petition without prejudice for failure to exhaust the Ford claim in state court. Petitioner appealed.

OVERVIEW: Petitioner contended that the U.S. Supreme Court's Martinez rule created an exception to the exhaustion requirement where the failure to exhaust a Ford claim was alleged to have been caused by state collateral counsel's ineffective assistance. However, the court determined that the Martinez rule clearly did not apply in the circumstances of the case because petitioner's claim, though unexhausted, was not procedurally barred (Fla. R. Crim. P. 3.811 created a specific mechanism through which state death-row inmates could challenge in state court their competency to be executed, and there was no filing deadline for bringing such a claim), and it was not a claim that trial counsel was ineffective. Because the plain meaning and obvious import of those explicit limitations were not debatable among jurists of reason, petitioner had not made the required showing for a COA, regardless of the merits or lack of merit of his underlying claim. The district court should not have granted a COA on the Martinez/exhaustion issue.

OUTCOME: The district court's judgment dismissing the petition was affirmed. The stay of execution previously entered by the court was vacated. The petitioner's motion for a stay of execution was denied.

PER CURIAM:

Marshall Lee Gore was convicted and sentenced to death in Florida state court for the first-degree murder and armed robbery of Robyn Novick. After his convictions and capital sentence were affirmed on direct appeal in 2001, see Gore v. State, 784 So. 2d 418 (Fla. 2001), Gore unsuccessfully pursued post-conviction relief in both state and federal court on a host of claims, including a claim that he is mentally incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986). The state and federal courts rejected each of his claims for collateral relief and dismissed his Ford claim as premature because he was not then subject to an active death warrant. Gore v. Sec'y, Fla. Dep't of Corr., No. 1:06-cv-22736 (S.D. Fla. Mar. 16, 2012); Gore v. State, 24 So. 3d 1 (Fla. 2009).

That changed on May 13, 2013, when the Governor of Florida signed Gore's death warrant and scheduled his execution for Monday, June 24, 2013. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 1622, 140 L. Ed. 2d 849 (1998) (noting that a Ford claim does not become ripe until an inmate's execution is imminent). Five days later, Gore's state-appointed collateral counsel, Steven Hammer, notified the Governor that he had reason to believe that Gore was mentally incompetent to be executed. Counsel also filed in the state circuit court a notice of a potential conflict of interest, which expressed a similar belief that Gore may be incompetent to be executed. Hammer indicated that, during a recent conversation with his client, Gore had behaved irrationally, refused to sign a release for his medical records, "made numerous statements about his distrust of counsel" and his belief that counsel was "engaged in a conspiracy to get [him] killed," and made unspecified statements about his case and imminent execution that Hammer characterized as "contradictory," "bizarre," and "irreconcilably irrational."

On May 22, 2013, the Governor, as required by Fla. Stat. § 922.07, appointed a commission of three psychiatrists to evaluate Gore's mental competence to be executed and granted a temporary stay of execution pending receipt of the commission's report. The commission members conducted a three-hour clinical interview with Gore on May 28, 2013, administered several neuropsychiatric tests, reviewed his mental health and correctional records from 1990 onward, and interviewed two corrections officers about his recent behavior. During the evaluation, Gore told the commission members that there was a vast conspiracy among state officials, including the Governor of Florida, to harvest the organs of condemned prisoners for financial gain and for the benefit of elite members of society. Gore said that he believed that a state senator was waiting to obtain Gore's eyeballs for his blind son. Based on their evaluation, including the results of the neuropsychiatric tests, the commission members unanimously dismissed Gore's assertions as a patent "fabrication designed to mislead the panel and avoid responsibility for his past actions" and concluded that he has "no current mental illness," was "feigning psychopathology to avoid the death penalty," and "understands the nature and effect of the death penalty and why it was imposed on him."

After receiving the psychiatric commission's report, the Governor issued a formal executive order on May 30, 2013, finding Gore mentally competent to be executed, lifting the temporary stay of execution, and reinstating the original execution date of June 24, 2013. Although Gore's Ford claim had fully ripened, Hammer, his state-appointed counsel, did not seek judicial review of the Governor's competency determination under Florida Rule of Criminal Procedure 3.811, which creates a specific state mechanism for prisoners to challenge their competency to be executed. See Fla. R. Crim. P. 3.811(d) ("On determination of the Governor of Florida, subsequent to the signing of a death warrant . . ., that the prisoner is sane to be executed, counsel for the prisoner may move for a stay of execution and a hearing based on the prisoner's insanity to be executed.").

Gore's federally appointed attorney, Todd Scher, waited until 7:00 p.m. on the Friday, June 21, before the scheduled execution on the following Monday, June 24, to file a federal habeas petition under 28 U.S.C. § 2254 raising a Ford claim. He also filed an emergency motion for a stay of execution. Gore, through his counsel Scher, acknowledged that he had not satisfied the exhaustion requirement of 28 U.S.C. § 2254(b) by first presenting his Ford claim to the state courts, but he contended that his failure to exhaust his state remedies was excusable under the Supreme Court's decision in Martinez v. Ryan, U.S. , 132 S.Ct. 1309, 182 L. Ed. 2d 272 (2012), because his attorney in the state proceedings had rendered ineffective assistance in failing to raise the claim in a Rule 3.811 motion.1

1 Gore's federal habeas counsel has not adequately explained his failure to attempt to appear on behalf of Gore in state court in order to raise the competency to be executed issue. In Howell v. State, 109 So.3d 763, 772-73 (Fla. 2013), the trial court, without any suggestion from the Florida Supreme Court that it was improper to do so, allowed counsel who was not the state registry counsel to appear in state post-conviction proceedings and participate in them on behalf of the petitioner.

During oral argument, Gore's federal habeas counsel argued that he was not obligated to appear in state court without compensation. But Harbison v. Bell, 556 U.S. 180, 183-84, 190 n.7, 129 S.Ct. 1481, 1485, 1489 n.7, 173 L. Ed. 2d 347 (2009), held that a district court has discretion to allow federally paid habeas counsel to appear on behalf of the petitioner in state clemency proceedings where the petitioner is otherwise unable to obtain adequate representation in those proceedings. The underlying statute covers both state court clemency proceedings and competency to be executed proceedings. See 18 U.S.C. § 3599(e) (providing that federally appoint counsel "shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available"). And here Gore is contending that he does not have adequate representation for the state competency proceedings. If, as Gore insists, his state court counsel is not providing representation adequate to exhaust his state court remedies, this would be a circumstance in which a district court could "determine, in its discretion, that it is necessary for court-appointed counsel to exhaust a claim in state court in the course of her federal habeas representation, so that counsel can go forward with her prosecution of the prisoner's federal habeas petition." Gary v. Warden, 686 F.3d 1261, 1277 (11th Cir. 2012) (alteration, citation, and quotation marks omitted).
We do not mean to imply that, but for his failure to exhaust, Gore has proffered enough evidence of incompetency to entitle him to a stay of execution based on his Ford claim. That issue is not before us given his failure to exhaust.

The district court dismissed Gore's habeas petition without prejudice for failure to exhaust the Ford claim in state court and, in so doing, the court rejected Gore's contention that the lack of exhaustion could be excused under Martinez. The court concluded that the rule announced in Martinez did not create an exception to § 2254(b)'s exhaustion requirement, but instead was explicitly limited to claims of ineffective assistance of trial counsel that are procedurally defaulted in state court due to the ineffectiveness of state post-conviction counsel. Because Gore's Ford claim, though unexhausted in state court, was not procedurally barred under state law and was not a claim of ineffective assistance of trial counsel, the district court found that Martinez was inapplicable and that the Ford claim was due to be dismissed for lack of exhaustion. The district court also denied Gore's motion for a stay of execution. It did, however, grant Gore a certificate of appealability on the sole issue of: "Whether Martinez v. Ryan created an exemption to the exhaustion requirement of 28 U.S.C. [§] 2254(b) when counsel is ineffective for failing to assert a Ford claim in state court." In granting a COA, the court found that Gore had made a "substantial showing of the denial of a constitutional right" and that reasonable jurists could debate whether he was entitled to pursue an unexhausted Ford claim in federal court pursuant to Martinez.

On the same day as the scheduled execution, June 24, Gore filed an emergency motion for a stay of execution with this Court. The State filed with us a motion to vacate the district court's COA as improvidently granted on the ground that Martinez clearly does not apply to unexhausted Ford claims. Under Eleventh Circuit Rule 22-4(a)(7), we granted a temporary stay of execution in order to prevent Gore's death mooting the appeal and directed the parties to brief a number of issues, including the sole issue upon which the district court's COA was granted. See 11th Cir. R. 22-4(a)(7) ("If a certificate of appealability is granted by the district court or this court, the panel shall grant a temporary stay pending consideration of the merits of the appeal if necessary to prevent mooting the appeal . . . ."). We have received and considered the parties' briefs and held oral argument on the issues specified in our earlier order.

I. Gore's Motion for a Stay of Execution

A stay of execution is an equitable remedy that "is not available as a matter of right." Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 2104, 165 L. Ed. 2d 44 (2006). To warrant a stay of execution, an inmate must demonstrate that: "(1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest." Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011); see also Hill, 547 U.S. at 584, 126 S.Ct. at 2104 (holding that inmate seeking a stay of execution "must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits"). Moreover, under Eleventh Circuit Rule 22-4(a)(7), we may deny a temporary stay of execution if, after a hearing, we find that the merits of the appeal are "frivolous, or [are] lacking in any factual basis in the record, or [are] squarely foreclosed by statute, rule, or authoritative court decision." 11th Cir. R. 22-4(a)(7)(i).

Gore has not shown a substantial or significant likelihood of success on the merits of the sole procedural issue identified in the district court's COA. He cannot make that showing because the merits of that issue are "squarely foreclosed" by the exhaustion requirement set forth in 28 U.S.C. § 2254. Under § 2254(b), a federal court may not grant a writ of habeas corpus on a claim unless the petitioner has exhausted all available state court remedies regarding that claim. 28 U.S.C. § 2254(b). A petitioner cannot satisfy the exhaustion requirement if, with certain exceptions that are not applicable in this case, he has failed to avail himself of "any available procedure" by which he has the right to raise his claim in state court. Id. § 2254(c). If a petitioner fails to exhaust his state remedies, a district court must dismiss the petition without prejudice to allow for such exhaustion. See Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 1203-05, 71 L. Ed. 2d 379 (1982); Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010). But see 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").

It is undisputed that Gore did not exhaust his Ford claim in state court before seeking federal habeas review of that claim, and he does not contend that either of the statutory exceptions, see 28 U.S.C. § 2254(b)(1)(B), are applicable. The question is whether, as Gore contends, the Supreme Court's decision in Martinez created an exception to the exhaustion requirement where the failure to exhaust a Ford claim is alleged to have been caused by state collateral counsel's ineffective assistance. Martinez, however, clearly does not apply in the circumstances of this case because Gore's claim, though unexhausted, is not now procedurally barred, and it is not a claim that trial counsel was ineffective.

Under the doctrine of procedural default, a federal habeas court may not review the merits of a claim that is procedurally barred unless the petitioner can demonstrate cause for the default and actual prejudice, or that he is actually innocent of his crime of conviction. Ward, 592 F.3d at 1157. Before its decision in Martinez, the Supreme Court had held that a petitioner cannot rely on the ineffective assistance of post-conviction counsel to establish cause to excuse a procedural default because there is no constitutional right to an attorney in state post-conviction proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991).

In Martinez, however, the Court recognized a "narrow exception" to this general rule by holding that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." 132 S.Ct. at 1315 (emphasis added). Repeatedly in its opinion, the Supreme Court emphasized the limited scope of the exception that it was crafting to the rule established in Coleman. The Court was careful to characterize its decision as a "limited qualification" to Coleman's holding that negligence on the part of a prisoner's post-conviction counsel does not constitute cause to excuse the procedural default of a claim in state court. Id. at 1315-16, 1319-20. And the Court made clear in Martinez that "[t]he rule of Coleman governs in all but the limited circumstances recognized here" — namely, "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding" and "counsel in that proceeding was ineffective" for failing to raise such ineffective assistance claims. Id. at 1320. The Court also underscored that the concededly "narrow exception" it was adopting was meant to "reflect[] the importance of the right to the effective assistance of trial counsel" and that its holding "addresse[d] only the constitutional claims presented in this case, where the State barred the defendant from raising the claims [of ineffective assistance of trial counsel] on direct appeal." Id.

By its own emphatic terms, the Supreme Court's decision in Martinez is limited to claims of ineffective assistance of trial counsel that are otherwise procedurally barred due to the ineffective assistance of post-conviction counsel. Gore is not asserting a claim of ineffective assistance of trial counsel. And while his Ford claim is unexhausted in state court, it is not procedurally defaulted and, as such, is not subject to any of the exceptions to the procedural default rule, including the one recognized in Martinez.

An unexhausted claim is not procedurally defaulted unless it is evident that any future attempts at exhaustion would be futile due to the existence of a state procedural bar. Bailey v. Nagle, 172 F.3d 1299, 1303, 1305 (11th Cir. 1999). There is no state procedural rule preventing Gore from raising his Ford claim in state court. To the contrary, Florida Rule 3.811 creates a specific mechanism through which state death-row inmates can challenge in state court their competency to be executed, and the Florida Supreme Court has specifically stated that there is no filing deadline for bringing such a claim. See Fla. R. Crim. P. 3.811(d); Provenzano v. State, 751 So. 2d 37, 40 (Fla. 1999) (acknowledging that Rule 3.811 "does not contain a timetable for filing"). The district court in this case found that the Florida courts would not refuse to hear Gore's Ford claim based on a procedural bar, and the State has assured us that there is nothing in Florida law to suggest that the state courts would refuse to consider the merits of a Rule 3.811 motion. Gore does not contend that his Ford claim is procedurally barred and instead concedes in his brief to us that "[a]ny conclusion that a state procedural bar would be applied to a Rule 3.811 motion filed at this time would be speculative." App. Br. at 46.

Moreover, although the Supreme Court has recognized several exceptions to the judicially-created procedural bar doctrine, see, e.g., Wainwright v. Sykes, 433 U.S. 72, 81-88, 97 S.Ct. 2497, 2503-07, 53 L. Ed. 2d 594 (1977) (creating an exception to the procedural default rule when the petitioner can show cause for the default and prejudice from it), the Court has not recognized any equitable exceptions to the statutory bars on habeas petitions when the petitioner does not make a "credible showing" of actual innocence. See McQuiggin v. Perkins, U.S. , 133 S.Ct. 1924, 1931, 1933, 185 L. Ed. 2d 1019 (2013). The Supreme Court's most recent decision on the matter, McQuiggin, reaffirmed that principle, holding that there is an "equitable exception" to the statute of limitations applicable to habeas claims, 28 U.S.C. § 2244(d), but only when the petitioner presents new evidence that "shows it is more likely than not that no reasonable juror would have convicted the petitioner." Id. at 1931, 1933 (alteration and quotation marks omitted). The Court's opinion expressly limited its holding to that situation, stating that "AEDPA's time limitations apply to the typical case in which no allegation of actual innocence is made." Id. at 1933. Gore does not claim actual innocence and the exhaustion statute does not provide for the exception that Gore asks us to create. McQuiggin reaffirms that in these circumstances we lack the authority to rewrite the statute and create an exception that Congress did not enact.

Because Gore's claim is not procedurally barred and it does not raise an allegation of ineffective assistance of trial counsel, Martinez by its own terms does not, and cannot, excuse his failure to satisfy the exhaustion requirement of § 2254(b). Unless and until the Supreme Court overrules the limitations it placed on its Martinez decision, we are bound to respect and apply them. Because the plain meaning and obvious import of those explicit limitations are not debatable among jurists of reason, Gore has not made the required showing for a COA, regardless of the merits or lack of merit of his underlying claim. The district court should not have granted a COA on the Martinez/exhaustion issue. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000) (holding that a COA should issue only "when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."). The sole issue presented in this appeal is clearly foreclosed by statute, 28 U.S.C. § 2254(b)(1), and authoritative decisions. See 11th Cir. R. 22-4(a)(7). As for the State's motion to vacate the COA, see Clisby v. Alabama, 52 F.3d 905, 906 n.1 (11th Cir. 1995).

The district court's judgment dismissing without prejudice Gore's petition for a writ of habeas corpus is AFFIRMED. The State's motion to vacate the certificate of appealability is DENIED AS MOOT. The stay of execution previously entered by this Court is VACATED. The Petitioner's motion for a stay of execution is DENIED.